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In a letter dated September 19, 2001, to the Clerk of the Appellate Courts, respondent, Michael J. Friesen, of Garden City, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice in Kansas, pursuant to Supreme Court Rule 217 (2000 Kan. Ct. R. Annot. 262).
On October 29,1999, the respondent was publicly censured by this court. In re Friesen, 268 Kan. 57, 991 P.2d 400 (1999). On July 13, 2001, the Kansas Supreme Court temporarily suspended the respondent from the practice of law in the state of Kansas. At the time the respondent surrendered his license, two formal complaints had been filed by the Disciplinary Administrator’s office. In those complaints there were allegations of misappropriation of client funds and lack of candor during the investigation of the disciplinary complaints.
This court, having examined the file of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Michael J. Friesen be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Michael J. Friesen from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2000 Kan. Ct. R. Annot. 266).
Dated this 15th day of October, 2001. | [
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The opinion of the court was delivered by
Abbott, J.:
Appellant Triplett, Woolf & Garretson, LLC (TW&G) served as appellee Janee Marie Comley’s attorneys of record during her divorce action against respondent Bill Ray Phillips. Here, TW&G appeals the order of the district court filed April 7, 2000. In that order, the district court held that TW&G’s attorney’s Men did not attach to monies paid into the court by a nonparty pursuant to a spousal maintenance order. TW&G filed a timely appeal pursuant to K.S.A. 60-2102(a)(4). The matter is before this court pursuant to a K.S.A. 20-3018(c) transfer.
On October 5, 1998, Comley entered into a representation agreement with TW&G, with James A. Walker as the primaiy attorney responsible for the representation. Walker’s rate of compensation was set at $200 per hour, plus expenses. The agreement specifically stated:
“I understand that due to die pendency of this action and your loss of your job you will be looking for an Order of the Court or a liquidation of marital assets in order to satisfy the attorney’s fees and expenses in this matter. You also understand diat in a matter such as this where your cash flow does not permit you to remain current on our billing, it may be necessary for us to file an attorney’s lien or some other process in order to protect our interests with respect to being paid for our services.”
Comley does not argue that the agreement was improper or that the amount of fees charged by TW&G was excessive.
After considerable litigation and a prolonged trial, the district court awarded Comley a cash property settlement of $550,429 and 6 years of spousal maintenance at $5,000 per month, beginning November 1, 1999. The journal entry of judgment and decree of divorce also granted TW&G judgment against Phillips in the amount of $84,627 for unpaid attorney fees and expenses.
At the commencement of the divorce action, Phillips owned 73.7% of Mid-America Auto Auction (MAA). The court awarded 50% of that business interest to Comley. Phillips had entered into a severance agreement with MAA to compensate him for past services rendered. Following the divorce trial, the court issued an income withholding order requiring MAA to pay the $5,000 per month it owed to Phillips to the clerk of the district court for the monthly spousal maintenance payment.
On December 10, 1999, TW&G withdrew as counsel for Comley. John E. Foulston of Foulston Conlee Schmidt & Emerson, LLP, entered his appearance as attorney of record for Comley.
On November 15, 1999, TW&G filed an attorney’s fien and served it upon MAA seeking to attach a portion of the $5,000 payment to the clerk of the district court. Without disputing the amount of TW&G’s fees, Comley contested the application of the lien to the spousal support payments.
On January 7, 2000, a hearing was conducted before the Honorable Rebecca L. Pilshaw. During oral argument, Comley’s new counsel reviewed the history of monies directed to TW&G, noting that during the pendency of the divorce, funds from the sale of real property were put into escrow and from that account more than $125,000 in attorney fees was paid to TW&G. In addition to that amount, TW&G was to receive another $84,627 for attorney fees and expenses. Although Comley was awarded judgment for $550,429 from property division, no payment on that judgment had been made by Phillips. Comley’s attorney stated that except for the spousal maintenance money, Comley was “without any other source of funds on which to five.” Comley’s attorney argued that TW&G should not be able to enforce its fien (1) because public policy dictated that support or maintenance in any form should not be subject to a hen and (2) because the attorney’s hen statute did not provide for a charging hen on monies coming to the court from a third party rather than from the adverse party. Further, Comley’s attorney argued that a statutory Hen was an extraordinary remedy given by the law and, as such, must be strictly construed.
In contrast, TW&G argued that spousal maintenance should not enjoy hallowed status. In addition, TW&G contended that during the trial Comley told the court that one of the reasons she needed $5,000 per month in spousal support was due to her outstanding bills, including TW&G’s bill for attorney fees. Further, TW&G characterized K.S.A. 7-109 as not distinguishing between sources of the monies coming to the clerk of the court. Therefore, TW&G argued that “this alimony obviously is a judgment . . . and we are claiming a lien on those amounts.”
The district court held that TW&G’s Hen did not attach to monies paid by MAA directly to the clerk of the district court pursuant to the income withholding order “since these funds do not constitute ‘money due to the client and in the hands of the adverse party’ as required by K.S.A. 7-108.” As an additional ground for its decision, the court held that TW&G’s hen did not attach “to any funds which are due to [Comley], from any source, which are in payment of [Phillip’s] obligation to pay spousal maintenance since to allow a Hen to attach to such monies would violate the pubhc poHcy of the State of Kansas.”
On appeal, TW&G challenges both bases for the district court’s decision. Comley contests the jurisdiction of this court under K.S.A. 60-2102(a)(4) because of pending posttrial motions filed by PhilHps. Comley also seeks affirmance of the holding of the district court as a correct interpretation of public poHcy and K.S.A. 7-108.
The reasons cited by the district court for denying TW&G’s Hen were that the monies sought to be attached were not “in the hands of the adverse party,” as required by K.S.A. 7-108 and that attachment of spousal support in this circumstance would violate pubhc poHcy. TW&G filed its attorney’s Hen under the authority of K.S.A. 7-108 and 7-109. Therefore, the district court’s interpretation of these statutes is at issue.
“Interpretation of a statute is a question of law in which appellate review is unHmited.” Kansas Dept. of SRS v. Paillet, 270 Kan. 646, Syl. ¶ 3, 16 P.3d 962 (2001). “Legislative intent is to be determined from a general consideration of an entire act. To the extent possible, the court should attempt to reconcile different provisions so as to make them consistent, harmonious, and sensible. It is presumed that the legislature intended that its enactments are to be given a reasonable construction, so as to avoid unreasonable results.” Carlson v. Ferguson, 270 Kan. 576, Syl. ¶ 1, 17 P.3d 333 (2001).
K.S.A. 7-108 authorizes the entry of attorney’s Hens for unpaid compensation due from cHents. The statute states:
“An attorney has a lien for a general balance of compensation upon any papers of his or her client which have come into the attorney’s possession in the course of his or her professional employment, upon money in the attorney’s hands belonging to tlie client, and upon money due to die client and in the hands of die adverse party, in any matter, action or proceeding in which the attorney was employed, from die time of giving notice of the lien to die party.”
K.S.A. 7-109 deals with the amount of an attorney’s lien and allows the court to determine the amount due on the Hen and make an order for distribution of monies after a judgment has been collected or deposited with the clerk of the court. That statute states, in pertinent part:
“Where any judgment has or may be collected or paid to die clerk of any court rendering die same, on execution or otherwise, upon which an attorney’s lien is claimed, the court in which such judgment was or is rendered may in term-time, or the judge of said court at chambers, without formal pleadings, on application of any party interested, determine die amount due on said attorney’s lien, if any, and make an order for the distribution of said moneys according to the respective rights of die parties. Upon receipt of such order, die clerk shall make such distribution.”
One further statute that bears on the issue before us is K.S.A. 2000 Supp. 60-2308(e), which reads:
“Money held by the state department of social and rehabilitation services, any clerk of a district court or a district court trustee in connection with a court order for die support of any person, whether it be identified as child support, spousal support, alimony or maintenance, shall be exempt from execution, attachment or garnishment process.”
TW&G argues that the case of In re Marriage of Wageman, 25 Kan. App. 2d 682, 968 P.2d 1114 (1998), supports the proposition “that attorney’s Hens can be enforced against awards of support.” In Wageman, the Court of Appeals reviewed both K.S.A. 7-108 and 60-2308(e).
In Wageman, the cHent hired an attorney to represent her in an action to collect past due child support and to modify monthly child support payments. The attorney claimed that the cHent agreed to pay attorney’s fees out of the monies recovered. When the parties eventuaHy settled their dispute for the lump sum of $17,148.19, the balance due to the attorney was $4,521. At the cHent’s request, the district court reviewed the attorney’s fees, found them to be reasonable, and entered an order to pay the hen out of monies received from the settlement of a claim for unpaid child support. After the attorney notified Wageman that he had received the settlement check, the client arranged to stop payment on the check and a new check reissued payable only to the district court.
TW&G points to the language of the Court of Appeals from Wageman-. “We find that in an action for recovery of an arrearage of support, the attorney for the claimant is entitled to an attorney’s hen against the amount of settlement of judgment for fees incurred in obtaining the settlement or judgment.” 25 Kan. App. 2d at 686. Significantly, however, TW&G ignores specific language in Wageman concerning the statutory exemption provided by K.S.A. 60-2308(e):
“Under the facts of this case, we hold K.S.A. 60-2308(e) does not apply for the reason that the money is a settlement of a disputed claim. . . . Again, that is not applicable as we are dealing with a lump sum recovery of disputed past due child support, not money used to pay current child support.” 25 Kan. App. 2d at 684.
Here, K.S.A. 2000 Supp. 60-2308(e) bears more directly on the issue before this court because the monies in question are being used to pay current spousal support.
In addition, TW&G cites Grayson v. Grayson, 182 Kan. 285, 320 P.2d 803 (1958), and Costigan v. Stewart, 76 Kan. 353, 91 Pac. 83 (1907), in support of its argument that an attorney is entitled to a hen upon support funds. In Grayson, this court quoted Costigan and held that “[a]n attorney who is employed by the mother of an illegitimate child to assist in the prosecution of bastardy proceedings, under a contract by which he is to be paid an attorney’s fee out of the fund recovered, is entitled to a hen upon such fund for his fees.” 182 Kan. at 287.
However, Costigan was published in 1907 and Grayson in 1958. K.S.A. 60-2308 was not enacted by the legislature until 1963. See L. 1963, ch. 303. Because the statute is later in time, Costigan and Grayson do not control the outcome of this case.
In addition, both Comley and TW&G look for support in cases from other jurisdictions that are reviewed in an annotation by Garrison, Alimony or Child Support Awards as Subject to Attorneys’ Liens, 49 A.L.R.5th 595. That annotation reveals that in general, charging liens have not been held enforceable against periodic spousal support awards, but may be enforced against lump sum awards.
Although the language of K.S.A. 7-108 does not distinguish between categories of “money due to the client,” K.S.A. 2000 Supp. 60-2308(e) does. It exempts from execution, attachment, or garnishment any “[m]oney held by . . . any clerk of a district court ... in connection with a court order for the support of any person, whether it be identified as child support, spousal support, alimony or maintenance . . . .” K.S.A. 2000 Supp. 60-2308(e).
The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Legislative intent may best be determined from the plain meaning of the words used in the statute in fight of all the experience available to the lawmaking body. Hulme v. Woleslagel, 208 Kan. 385, 391, 493 P.2d 541 (1972). In this case, the spousal support monies in question clearly fall within the category contemplated by this exemption statute. Under the plain meaning of K.S.A. 2000 Supp. 60-2308(e), the periodic spousal support payments made to the clerk of the court are exempt from the lien of TW&G.
For the reasons outlined above, we find that the district court correctly held that TW&G could not apply its attorney’s lien to the monies in the hands of the clerk of the district court in connection with the monthly spousal support payments.
Affirmed.
Davis, J., not participating.
David S. Knudson, J., assigned. | [
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The opinion of the court was delivered by
Six, J.;
This is primarily a sufficiency of the evidence case. Defendant Floyd S. Bledsoe appeals his convictions for first-degree premeditated murder, aggravated kidnapping, and aggravated indecent liberties. K.S.A. 21-3401(a); K.S.A. 21-3421; K.S.A. 21-3504. Our jurisdiction is under K.S.A. 22-3601(b)(l) (an appeal of a conviction for an off-grid crime receives review by this court).
Bledsoe claims multiple violations of his due process guarantees of the 5th and 14th Amendments to the United States Constitution. He asserts: (1) The evidence was insufficient to support his convictions and (2) the district court erred by (a) admitting hearsay evidence and (b) allowing an officer to testify regarding certain police interview statements made by the defendant’s brother.
Bledsoe’s due process arguments appear for the first time on appeal. The challenges to his convictions below, expressed in his motion for a new trial, were framed as claims of insufficient evidence.
Finding no error, we affirm.
FACTS
On Monday, November 8, 1999, the body of Bledsoe’s 14-year-old sister-in-law C.A. was found buried in the trash dump on the property of Bledsoe’s parents. At the time of her disappearance, C.A. was living with Bledsoe and his wife Heidi. (Both locations were near each other outside of the town of Oskaloosa.) On November 5, 1999, C.A. rode the bus home from school. She was dropped off at the Bledsoes’ trailer home around 4:20 p.m. A friend of C.A.’s stopped by around 5 p.m., but C.A. was not there. The friend entered the trailer. She noticed that C.A.’s coat and school bag were in the living room.
Tom Bledsoe, the defendant’s brother, was originally arrested for the murder. Tom lived with his parents. Two days after C.A. was reported missing, Tom turned himself in and, through his attorney, led investigators to C.A.’s body. Her body was found under a pile of dirt, with several sheets of plywood and some clothing on top. She had been shot once in the back of the head and three times in the chest. According to forensic evidence admitted at trial, the shot fired to the back of C.A.’s head was a contact shot and was not fired at the location where she was found.
The murder weapon, a 9 mm semiautomatic pistol found in Tom’s bedroom, belonged to Tom. He had purchased the gun about 2 weeks before the murder. Tom kept the gun behind the seat in his truck. No fingerprints were found on the gun. After inspecting the gun and shell casings from the crime scene, the Kansas Bureau of Investigation (KBI) concluded that the bullets from those casings had been fired by Tom’s gun. The KBI lab could not be certain that the bullet lodged in C.A.’s head was fired from Tom’s gun. Shells matching those fired from Tom’s gun were found in his bedroom.
William Knoebel, a colonel in the United States Army and a professor of military science stationed at Ft. Leavenworth, was bow hunting deer on Friday, November 5, 1999, the evening of C.A.’s disappearance. The area where he was hunting was near the Zule dairy farm, where Bledsoe worked. The colonel used a large map of the area to explain and mark his location for the jury. (The large diagram map was an admitted exhibit. It showed tire location and proximity relationship of McLouth, Oskaloosa, the Zule dairy, the home of Bledsoe’s parents, and Bledsoe’s trailer.) Around 5:30 p.m., Knoebel heard a woman scream and the words, “[P]Iease don’t hurt me.” A few minutes later, he heard another scream and the words, “[P]lease don’t hurt me, somebody help, please don’t hurt me.” He described what he heard:
“At first I thought that this was a, it could have possibly have been somebody who was, you know, outside playing or something like that but there was that peculiar sound when you hear a, a girl or woman scream that just was not of the ordinary of a normal little fight or a tiff between individuals. This was, there was something distinct about that, and I waited a few minutes and as I was sitting in the deer stand and I thought, you know, that, that was awfully peculiar, and the inversion factor in that valley at that time and the atmospheric conditions in that, that little creek bed there were pristine so the next time I heard the scream, which was a minute or two later, it was very clear to me that there, there was somebody that was clearly in distress. The words came out again, ‘[P]lease don’t hurt me, somebody help, please don’t hurt me,’ and continued like that. At that time it was very clear in my mind, that somebody was ... in need of some help, so I got out of my deer stand, very quickly got out of my deer stand and I went directly to the north, northwest, to where I believed that the, the screams were coming from, because they were clearly to my back. ... I started running toward where I thought I heard die sound coming from.”
After the second scream, Knoebel heard nothing else. Knoebel also testified that he did not hear any shots. Richard Zule, the owner of the dairy farm, testified that he was working outside at that time, but he did not hear any screaming.
On Saturday, November 6, 1999, Dan Courtney, a neighbor of, the Bledsoe family, saw a truck around 8 or 9 a.m, resembling Tom’s, coming out of the field where C.A. was buried. Tom made a statement to police implicating Bledsoe. Tom testified that on November 5, around 3 p.m., he picked up his paycheck at Farmland Industries in Lawrence, where he worked as a security guard. Then, he went to a bait and tackle store to look at a rifle and bows. Tom said that around 4 p.m. he went to Rusty’s Outdoor Equipment to buy ammunition. The store manager testified that the receipt issued to Tom was generated at 4:30 p.m. When Tom left Rusty’s, he used his cell phone to call his father before he drove home, but his father was not home.
Tom attended a church function at 6 p.m. When he returned home around 9:30 p.m., his parents were not there. He went to bed. His parents arrived about 30 minutes later. The next morning, Tom helped around the house and worked on a lawnmower. Bledsoe called his father earlier that morning and told him that C.A. was missing. The police had also called and asked Tom if a 13-or 14-year-old girl had been seen around there. Tom told them she had not.
On Saturday, November 6, 1999, Tom left for work between 11 a.m. and 1 p.m. He testified that on his way to work, he saw Bledsoe’s green car with a white top. Tom stopped Bledsoe at the edge of Oskaloosa. He asked him if C.A. had been found and if any fliers had been handed out. Tom also mentioned that the police were looking for C.A. Bledsoe knew the police were looking for her.
Tom testified that Bledsoe laid his head on the steering wheel and looked a little nervous. When Tom asked him what was wrong, Bledsoe said C.A. was dead. Tom said Bledsoe was mumbling, but he heard him say “accidentally shot her.” Tom asked, “What?” Bledsoe said, “She’s dead, accidentally shot her.” Tom testified that he asked Bledsoe why she was dead. Bledsoe shook his head and shrugged his shoulders.
Then, Tom said he started asking why she was dead and if Bledsoe had raped her or sexually abused her. Bledsoe responded, “Yes, no, I don’t know.” Bledsoe told Tom that he recalled her shirt and bra were above her breasts and that he used Tom’s pistol to shoot C.A. Tom said he reached behind the truck seat and felt his gun in the case. He said Bledsoe knew he kept a gun in his truck: Tom testified that Bledsoe told him he shot C.A. once in the back of the head and twice in the chest. When Tom asked where C.A. was, Bledsoe told him she was in the trash dump behind their parents’ house underneath plywood, trash, and dirt.
Tom said Bledsoe told him not to tell anyone. If anyone were to come snooping around, he wanted Tom to take the blame. If Tom did not take the blame, Bledsoe would tell people about Tom’s past. At trial, Tom acknowledged that Bledsoe had threatened him this way before to get what he wanted. Tom thought Bledsoe would reveal that he had tried to have sex with a dog, had been caught with dirty magazines, and had played with himself while watching dirty movies.
When Tom got to work, he examined his gun to see if it had been fired. He had cleaned the gun the previous week, and, as far as he knew, it had not been fired after the cleaning. When he smelled the gun, it had a “burnt smoky smell.” Tom had loaded the gun with 10 shells before putting it behind the truck seat, but now there were only 2 shells left in the gun. Tom thought about whether he should go to the police with the information or keep his mouth shut and “take the rap.”
When he got off work at 11 p.m., Tom went home to “make sure if what [Bledsoe] told [him] was true.” He drove out to the trash dump and looked around with a flashlight. He noticed shovel marks in the side of the bank of the ditch and that some plywood was out of place. Tom got down into the ditch and looked under the plywood. Trash was blocking his view. (He did not see C.A.’s body.) Then, he got out of the ditch and looked for the shovel that he had used earlier in the week to dig up a tree. After spotting the shovel, Tom returned to his truck and drove home. He put his gun in his dresser drawer.
After church the next evening, Tom went to the police station. He testified that he “was taking the blame.” Before talking to police, he called Jim Bolinger, his minister, and left two messages. In the messages, Tom said he was sorry and that he would “pay for the rest of [his] fife for what [he had] done.” He did not say that he killed C.A. However, Tom told officers that he had shot C.A. He testified that he turned himself in for something he did not do because he did not want people to know about his past. He said he also thought about wanting Bledsoe’s children to grow up with a father in the home. A day or two after his arrest, Tom was “ashamed” about lying and talked with police again, implicating Bledsoe. He testified that he could not live with himself because Bledsoe had told him where C.A.’s body was.
Bledsoe’s 2-year-old son Cody, who did not testify at trial, allegedly made statements implicating either Tom or Bledsoe in the crime. The child’s statements developed in the following manner. Bledsoe and his wife Heidi had two sons. Heidi dropped the boys off at a babysitter’s house around 12:45 p.m. on Friday, November 5,1999, before she went to work. The babysitter watched the boys until 12:45 a.m., when Bledsoe picked them up. Bledsoe brought them back to the babysitter around 2:45 a.m., and he returned at 8:30 a.m. On Monday night (November 8, 1999), Cody told Heidi that Tom had killed C.A. He described Tom shooting C.A., wrapping her in a blanket, and putting her in the dump. Rosa Bolinger, who attended the same church as C.A., said she also heard Cody telling a story about Tom shooting C.A. Rosa told police that Cody said, “Tom shot [C.A.], boom, boom, boom, boom, and dumped her in the water. Tom put his, Cody’s, blanket around [C.A.] and also put [C.A.’s] blanket around her. . . . Tom closed [C.A.’s] eyes and he kissed her cheeks.” Later, Cody changed what he said, telling his mother “Daddy” shot her.
Bledsoe spoke to law enforcement officers on Monday, November 8, 1999. He said that he met C.A.’s school bus on the road on the previous Friday after it stopped at his trailer. Bledsoe said he stopped at his trailer, but C.A. was not there. He then denied going to die trailer. Detective Frost went to a hardware store and verified that Bledsoe had purchased duct tape and a sweatshirt at 4:20 p.m. on November 5, 1999. After returning to the Zule Dairy Farm where he worked, Bledsoe went out into a field to check on a cow and tiien rode a four-wheeler toward die farm to start milking the cows. Richard Zule estimated that the milking takes 3 V2 to 4 Va hours, followed by about 30 minutes of bam cleaning. Bledsoe called Zule at 11:30 p.m. to tell him that one of the cows was not giving milk.
Heidi arrived home from work around midnight on November 5, 1999. Bledsoe pulled his car in behind her. They separated to look for C.A. Heidi reported C.A. was missing. Bledsoe picked up two of C.A.’s sisters and returned with them to Oskaloosa. The next day, Bledsoe took fliers describing C.A. to the school. He wore the black sweatshirt he bought at the hardware store from Friday night until Sunday.
Investigators did not establish the location where they believed C.A. was killed.
DISCUSSION
First-Degree Premeditated Murder
Bledsoe contends that his conviction for first-degree premeditated murder was not supported by sufficient evidence. We disagree.
A prologue to any sufficiency of the evidence analysis is the recognition of our standard of review. The standard is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Evans, 270 Kan. 585, 590, 17 P.3d 340 (2001). A guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial. State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
Bledsoe argues that neither direct nor circumstantial evidence supported his conviction. He contends that the State relied entirely upon his alleged roadside confession to his brother Tom. He asserts that the roadside confession is highly suspect and that the confession was uncorroborated by any evidence, other than the discovery of C.A.’s body. Bledsoe notes that Tom testified that the day after C.A.’s disappearance, Tom left for work between 11 a.m. and 1 p.m. Tom said that as he was leaving, he met Bledsoe on the road, waived him over, and asked if C.A. had been found.
In his first statement to police, Tom claimed that the conversation with Bledsoe took place before noon. Officer Carreno testified that he was at Bledsoe’s trailer from about 9 a.m. on November 6,1999, until about 12:17 p.m. and that Bledsoe was there the whole time. A neighbor testified that he was driving by the trailer between 12:15 p.m. and 12:30 p.m. that day, and Bledsoe stopped him and handed him a flier. Officer Carreno said he provided Tom with information to help him. He said Tom was not sure about the time that he talked to Bledsoe on the road and had not been trying to be exact when giving a time. When Tom reviewed and remembered the different events, he changed the time of his talking to Bledsoe on the road to after noon.
Bledsoe argues that there was no explanation offered about how he stole Tom’s gun, killed C.A., buried her on the family farm, and replaced the gun without anyone noticing. He notes that there was a dog on the property and the family was home late that night but did not hear any shots.
The State counters that there was evidence that C.A. was afraid to be alone at night with Bledsoe when Heidi was working. Rosa Bolinger testified that C.A. told her that Bledsoe was always “hitting on her” and trying to get her to wrestle with him. If he would not stop, she would go to her room. The State also contends that Bledsoe was in love with C.A. The record shows that Bledsoe told police that he loved C.A. Bledsoe and Heidi were getting a divorce, and he had asked C.A. what she was going to do after the divorce. She apparently told Bledsoe that she did not know, but C.A. told Rosa that she wanted to move in with her.
Around 10:30 p.m. on Friday November 5,1999, C.A.’s mother phoned Bledsoe and said she was going to call the police. Bledsoe told her not to. Bledsoe’s brother-in-law testified that he and two other people drove to the dairy at around 11 p.m. to talk to Bledsoe, but Bledsoe’s car was gone and the lights were out. At 12:45 a.m., Bledsoe picked up his sons from the babysitter and returned them to the babysitter about 2 hours later. Cody, the 2-year old son, told people that Tom shot C.A., that she was wrapped in a blanket, and that she was put into the dump. Later, he said his “Daddy” shot her. Heidi acknowledged that Cody’s story and his actions were graphic enough to suggest that he observed what he was describing.
Bledsoe’s father testified that he saw Bledsoe’s green car pass on the road the next day, sometime after Tom left. In a conversation between Bledsoe and his mother, his mother stated, “Well, I know Tom didn’t do it.” Bledsoe responded, “Yes, I know Tom didn’t do it, somebody else did it.” He followed with, “Well, maybe Dad did it, then.” His mother countered, “Floyd, that’s not true.” While in jail Bledsoe said he did not do it.
Bledsoe argues that the State had only the testimony of his brother Tom to take the case “beyond mere speculation that [Bledsoe] was involved.” He aptly notes that a murder conviction must be grounded on something more than probabilities, possibilities, or suspicions of guilt. See State v. Doyle, 201 Kan. 469, Syl. ¶ 9, 441 P.2d 846 (1968). He cites State v. Naramore, 25 Kan. App. 2d 302, 322, 965 P.2d 211, rev. denied 266 Kan. 1114 (1998), where the Court of Appeals reversed the jury verdict after finding it inconsistent with the “extremely strong” evidence in Dr. Naramore’s favor. Dr. Naramore was found guilty of the attempted murder of one patient and the intentional and malicious second-degree murder of another patient. The Court of Appeals concluded that there was “nothing close to a medical consensus that Dr. Naramore’s actions were homicidal.” 25 Kan. App. 2d at 321. The Naramore result does not persuade us here. The evidence here did corroborate Tom’s version of events.
C.A. was afraid to be alone at night with Bledsoe. Bledsoe loved C.A. and wanted to know where she would five after he and Heidi were divorced. C.A. was dropped off at the Bledsoe trailer by the school bus driver at 4:20 p.m. on Friday, November 5,1999. Bledsoe admitted to two different law enforcement officers on two separate occasions that he had been at the trailer within minutes of her being dropped off. A friend found C.A.’s school bag at the trailer at 5 p.m., but C.A. was not there. Colonel Knoebel heard screams of a young woman near the dairy where Bledsoe worked. Bledsoe could have been finished with his chores around 10:30 p.m. when he received a phone call from C.A.’s mother indicating she was going to call the police. He told her not to do so. He was absent from the dairy shortly thereafter. At 12:45 a.m., he picked up his son Cody from the babysitter and returned him to the babysitter 2 hours later at 2:45 a.m. The evidence suggests that Cody witnessed C.A. being shot and put in the ditch. Cody was only with Bledsoe when he was not at the babysitter’s home. Bledsoe knew Tom kept a pistol in his truck. He admitted to Tom that he killed C.A. with Tom’s gun. He admitted when Tom asked him if he raped C.A. that he knew her bra was over her breasts. He told Tom where the body was buried. Bledsoe’s father confirmed that Bledsoe was in his green car in the area after the roadside conversation between Bledsoe and Tom. Bledsoe Informed his mother that he knew Tom did not kill C.A. and then attempted to blame his father.
In addition, it is noteworthy that the district court gave a cautionary jury instruction regarding the testimony of an informant.
The jury heard Tom’s testimony. Floyd did not testify. The case was tried and argued to the jury primarily as a contest of Tom’s credibility. The jury believed Tom. This it was entitled to do. Bledsoe essentially asks us to reweigh the evidence. Our function is not to reweigh the evidence or pass on the credibility of witnesses. State v. Saiz, 269 Kan. 657, 664, 7 P.3d 1214 (2000).
Bledsoe’s Conviction for Aggravated Kidnapping
Bledsoe also contends that even if there was sufficient evidence to support his murder conviction, his conviction for aggravated kidnapping was not supported by sufficient evidence. This contention lacks merit.
The district court gave the following aggravated kidnapping instruction:
“To establish this charge, each of the following claims must be proved:
No. 1. That the defendant, Floyd Bledsoe, took or confined [C.A.] by force or threat;
No. 2. That it was done with the intent to hold such person;
a. To inflict bodily injury or to terrorize the victim;
No. 3. That bodily harm was inflicted upon [C.A.]; and
No. 4. That this act occurred on or about the 5th day of November, 1999, in Jefferson County, Kansas.”
Bledsoe notes that at the close of the State’s case, the district judge commented that he had heard no evidence of kidnapping. However, the judge later denied Bledsoe’s motion for judgment of acquittal, observing there was substantial evidence to support the jury’s verdict.
According to the coroner, it was likely that C.A. was shot in the head first, placed in the position in the ditch, and then shot three more times. Bledsoe argues that none of the State’s evidence supports a theory that she was confined, taken by force, or moved until after her death. He asserts that there was no evidence regarding the locale where C.A. was shot in the head. The investigators concluded that based on the lack of physical evidence at the burial site, such as blood, she was not shot in the head at the site. Bledsoe argues that if the shot to the back of C.A.’s head was fired first, it may have been fired suddenly, when C.A. was in a place to which she had voluntarily accompanied her abductor. The State contends that circumstantial evidence proves that C.A. was taken or confined by force or threat at the dairy with the intent to hold her to inflict bodily injury upon her or to terrorize her.
Both parties cite State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976). In Buggs, we found that to constitute kidnapping, where a taking or confining is allegedly done to facilitate the commission of another crime, the resulting movement or confinement must not be slight, inconsequential, and merely incidental to the other crime. The confinement must not be of the kind inherent in the nature of the other crime and must have some significance independent of the other crime, in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection. 219 Kan. at 215-16.
Bledsoe argues that here there was no evidence of any kind concerning the movement of C.A., except that she was not at the trailer shortly after the bus dropped her off. He points out that if C.A. went willingly with the killer to another location, there was no taking or confining by force or threat. There was no evidence that C.A. left the trailer unwillingly.
The State relies on State v. Montes, 28 Kan. App. 2d 768, 21 P.3d 592, rev. denied 271 Kan. 1040 (2001), for the assertion that after an attacker has moved a victim with the victim’s consent, then moves the victim a second time while she actively resists the attack, and subsequently rapes the victim, the aggravating kidnapping conviction should be affirmed. See 28 Kan. App. 2d at 772.
Bledsoe directs our attention to cases where we have concluded that the use of force or confinement was merely incidental to the underlying crime. See State v. Hays, 256 Kan. 48, 63, 883 P.2d 1093 (1994); State v. Ransom, 239 Kan. 594, 603, 722 P.2d 540 (1986); State v. Cabral, 228 Kan. 741, 744-45, 619 P.2d 1163 (1980).
Bledsoe also cites State v. Halloway, 256 Kan. 449, 886 P.2d 831 (1994). In Halloway, the victim was an unwilling companion for the entire period before the rape. Halloway’s car became lodged on a railroad track. When Halloway could not move the car off the tracks, the victim escaped to the highway. Halloway hit her with a jack handle or crowbar and forced her to return to the car. He did not rape her in his car. Rather, he dragged her into the woods, away from the highway. We found the evidence sufficient to support the verdict of aggravated kidnapping. 256 Kan. at 452-53.
The State observes that Colonel Knoebel heard a woman screaming. It argues that even if C.A. was voluntarily with Bledsoe, at the point of screaming she was no longer acting with consent. The State also contends that C.A. had to have been moved from the location near the dairy because the colonel did not hear a shot in that location.
The location where the shooting to the back of C.A.’s head took place was never determined. Bledsoe reasons that although the colonel heard screaming, he did not see who was screaming and did not know precisely where the screams originated.
The evidence at trial shows that Colonel Knoebel heard a young woman screaming, “[P]ease don’t hurt me, somebody help me, please don’t hurt me.” Even if C.A. was voluntarily with Bledsoe, at that point she no longer was acting with consent. The jury could have concluded that she had to have been moved from that location to another. It also could have concluded that Cody witnessed C.A. being shot. Cody was not present until after Bledsoe picked him up from the babysitter.
We have reviewed the cases cited by Bledsoe and the State and conclude the evidence of C.A.’s movement is sufficient to support the jury’s finding that C.A. was taken or confined against her will by force or threat with the intent to inflict bodily injury upon her or to terrorize her. There was sufficient evidence of a taking or confining to support an aggravated kidnapping conviction.
Aggravated Indecent Liberties with a Child
Next, Bledsoe argues the State failed to prove the elements of aggravated indecent liberties with a child beyond a reasonable doubt in violation of the due process guarantee of the 5th and 14th Amendments to the United States Constitution. Bledsoe asserts that there was no evidence to support a finding that C.A. was alive during the alleged crime of aggravated indecent liberties with a child. The due process argument and whether C.A. was alive or not was not raised before the district court. It is well established that a point not raised in the district court cannot be raised for the first time on appeal. State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994). Bledsoe, in his motion for a new trial, argued that there was no evidence to support his aggravated indecent liberties conviction. We disagree.
C.A.’s T-shirt and bra were found pulled up above her breasts. Dr. Erik Mitchell, a forensic pathologist, concluded that the clothing was probably pulled up over her breasts before she was shot in the chest because of the location of the holes in the garments. He testified:
“A. [To raise the clothing to the position it was found] you’d have to get down to wherever it is and pull it up, because it is up over the breast, I mean it’s really, it’s up and folded over the breast.
“A. It’s usually what we see [when] somebody [is] trying to move clothing rather than move a body.”
Tom testified that Bledsoe told him that C.A.’s shirt and bra were pulled up over her breasts. Tom said he asked Bledsoe if he had raped or sexually abused C.A. According to Tom, Bledsoe said, ‘Tes, no, I don’t know.” We are satisfied that the evidence before the jury, when viewed in the light most favorable, to the State, is such that a reasonable person could weigh the evidence and draw reasonable inferences therefrom and conclude, beyond a reasonable doubt, that Bledsoe committed indecent liberties with C.A.
Admitting Hearsay Evidence
Next, Bledsoe contends that the district court erred by admitting the hearsay statements of his 2-year-old son Cody impheating either Tom or Bledsoe in the crime. He advances a violation of his confrontation rights, arguing that (1) the State failed to show that the statements bore sufficient indicia of reliability, and (2) the statements were not corroborated. First, we note, as does Bledsoe, that there was no objection to the testimony regarding Cody’s statements. We will not reverse by reason of an erroneous admission of evidence unless a timely specific objection appears of record. K.S.A. 60-404. Second, the statements about which Bledsoe now complains were elicited for the first time by Bledsoe on cross-examination of Rosa Bolinger. Defense counsel read into the record Captain Turner’s written narrative report of his interview with Rosa. When a defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject. State v. Chatmon, 234 Kan. 197, Syl. ¶ 4, 671 P.2d 531 (1983).
The Officer’s Testimony
Bledsoe also contends that the district court erred by (1) allowing testimony concerning a joint interview with Tom and Bledsoe and (2) allowing an officer to give opinion testimony regarding the veracity of Tom’s statements to police. Bledsoe’s initial problem on this issue is that he did not object to the officer’s testimony. See K.S.A. 60-404.
In a motion in limine, Bledsoe requested that the State refrain from introducing evidence regarding polygraph tests and results. At the hearing on the motion, the parties agreed that the tests and results should not be introduced. The district court granted Bledsoe’s motion to suppress, ordering that “[t]he State shall be precluded from introducing the results of the interview of KBI Agent Johnson with Floyd Bledsoe and Tom Bledsoe.”
At trial, during the cross-examination of defense witness Officer Randy Carreno, the following took place:
“Q. Were you present when [Tom], during one of those interviews . . . when he was actually confronted with Floyd?
“A. Yes, I was.
“Q. Explain to the jury what happened.
“A. There was an agreement that was made during the course of the interview . . . when I was interviewing Floyd Bledsoe, that Tom would be brought in the interview room and at that time it would be Floyd, Tom and I discussing the homicide of [C.A.]. Tom entered the room and the one thing that I noted quickly was that Tom got as far away from Floyd as he possibly could and put his back to the wall. The next thing that I noticed was that Floyd was, he just stared him down, more of a intimidation type factor, and I could tell that Tom was very, very uneasy being in that room at that time.
“Q. Did Tom’s demeanor change compared to what it was before?
“A. He, the impression that I got from Tom Bledsoe was that at that point in time he became strong, and I don’t know how to explain that, but he . . . challenged Floyd, he challenged Floyd in a way that in my opinion he was able to stand up for the first time in front of Floyd and tell him the truth, to state the truth.
“Q. What did he say?
“A. That he wanted me to know the truth, he wanted everybody to know the truth, and that he wasn’t going to hide the truth anymore, and I asked him what the truth was.
“Q. And what did he say?
“A. The information that he gave me was that it was Floyd Bledsoe that killed [C.A.].”
Bledsoe contends that the contents of the interview were inadmissible under the district court’s order. However, it is apparent from the transcript that the detective was not questioned about the polygraph testing or results. There was no violation of a court order.
A review of the detective’s testimony shows that although he testified that he was familiar with interviewing techniques that are helpful in determining whether a suspect is being truthful or deceptive, he was not vouching for Tom’s credibility. Instead, the context shows that he referred to the “truth” according to Tom. Thus, the jury was presented with Tom’s version of what happened and was left to weigh the credibility of his statements. We find no error.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
McFarland, C.J.:
Edgar Livingston was charged with one count of first-degree murder (K.S.A. 21-3401) and two counts of rape (K.S.A. 2000 Supp. 21-3502). Defendant and the State entered into a plea agreement whereby: (1) defendant would plead guilty to first-degree murder; (2) the two rape charges would be dismissed; (3) the State would not seek the death penalty; and (4) both sides reserved the right to comment as to the appropriate sentence to be imposed. Prior to the sentencing, the State filed a motion requesting a hard 50 sentence. The district court imposed a hard 50 sentence pursuant to K.S.A. 2000 Supp. 21-4635. De fendant appeals therefrom, contending the record herein provides an insufficient legal basis for its imposition.
FACTS
Relatively few factual details of the crime are included in the record. At the plea hearing, Terra Morehead, assistant district attorney, recited the following facts in support of the guilty plea:
“Judge, the evidence would be that on February 10th of 2000, Edgar Livingston came to the Wyandotte County Sheriff s Department and asked to speak to someone in the office. Lieutenant Dennis Davis with the Sheriffs office made contact with Mr. Livingston. He indicated that he had some information about a homicide. Lieutenant Davis began talking to Mr. Livingston, and Mr. Livingston spontaneously told Lieutenant Davis that he had killed a woman in his apartment at 2724 North 8th Street in Kansas City, Kansas, in Wyandotte County. Police did respond to that address, and did enter die dwelling, and did locate the nude body of a woman who was later identified as Audrey Lowery, and she was deceased. A full taped statement was later taken from Livingston following his Miranda warning. He waived the Miranda warning and agreed to give a statement. He told police that he and Ms. Lowery had been engaged in narcotic activity, and they got involved in — in an argument, at which time he tied her up with a necktie, and he then had nonconsensual sex with her twice. Ms. Lowery direatened to alert the police, knowing that he was on — already on parole for attempted rape; and Mr. Livingston then produced a claw hammer and struck her in the head numerous times. Mr. Livingston was unaware of how many times he had actually struck her. An autopsy revealed that at least nineteen blows to the head had occurred. And if this case proceeded to trial, that’s the evidence that the State would present for the charge of first degree murder.”
Immediately thereafter the following exchange occurred between the court and the defendant:
“THE COURT: Okay, thank you. Mr. Livingston, I will ask you — you just heard what Ms. Morehead had to say about what she believes the evidence would be and what she believes the State is prepared to prove. Do you generally agree that those are the facts of this case?
“MR. LIVINGSTON: Yes sir. I — I — when this happened, I was on drugs, and I didn’t know what I was doing; and I’m truly sorry about what happened, but I can’t — can’t change it. I’m sorry that I did it, and I don’t I don’t think I deserve that much time. I ain’t no bad person, and I don’t think I’m a killer.
“THE COURT: Okay. You agree that those ■— those events, as Ms. Morehead described them, did, in fact, occur?
“MR. LIVINGSTON: Yes sir.”
The court then accepted defendant’s plea of guilty.
In its request for the imposition of the hard 50 sentence, the State listed the following aggravating factors:
“1. The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm on another, to wit: on July 5, 1996, in Case Number 95CR1788, the defendant was convicted of Attempted Rape for tying up and raping his thirteen year old daughter, [M.L.],
“2. The defendant committed the crime [the murder] in order to avoid or prevent a lawful arrest or prosecution — after sexually assaulting the victim, Audrey Lowery, she threatened to report the incident to the police.
“3. The defendant committed tire crime in an especially heinous, atrocious or cruel manner .... In consideration the State would note that the defendant inflicted mental anguish or physical abuse before the victim’s death by sexually assaulting her and there were continuous acts of violence begun before or continuing after the killing in that the defendant administered at least 19 blows, primarily to the skull of the victim, with a claw hammer.”
At the sentencing hearing, the State called the victim in the attempted rape case as a witness. She stated that as she was coming out of the bathroom, defendant grabbed her, tied her hands behind her back, laid her down, and took off some of her clothes. She further stated defendant tried to rape her but stopped when the victim told him the rope was hurting her. Defendant then untied her and advised her to wash the rope marks off and not to tell her mother.
In support of its second factor, the State pointed to defendant’s confession. According to the State, defendant said that one reason he killed the victim was that after he had forced her to have sexual intercourse with him, she threatened to call the police. As he was on parole, defendant knew he would be returned to prison. Defendant then took the claw hammer and killed the victim. It should be noted that the defendant’s taped confession is not included in the record on appeal, nor was it offered or admitted at sentencing; however, the affidavit for application for warrant indicates that defendant stated the following during his taped confession: “Livingston advised that he engaged in a verbal argument with Lowery. He later tied her up with a necktie, and had non-consensual sex with her twice. Lowery threatened to alert police, and Livingston produced a claw hammer. He then struck her in the head numerous times.”
As to the third factor, the State argued that striking the victim 19 times in the head with a claw hammer is an especially heinous, atrocious, or cruel manner of killing. The autopsy report was introduced and corroborated the massive multiple trauma to the head and various other injuries.
In mitigation, defense counsel argued that the victim was a prostitute and defendant had paid her for her favors. He further argued defendant killed the victim to prevent her from advising the police he had taken and used some of the victim’s crack cocaine as opposed to the State’s argument that the killing resulted from defendant’s concern that the victim would report the rapes to the police. Defense counsel also claimed mitigation in defendant’s having turned himself in to the sheriff s office the same day as the killing and that defendant “was not in his right mind due to the use of crack cocaine at the time.” There is no evidence in the record supporting any of these claims other than those in the preceding sentence.
The court then stated:
“THE COURT: Thank you. Accordingly, the defendant is sentenced to the custody of the Secretary of Corrections for a term of life. I’m going to find that the Hard-50 sentence applies. The aggravating circumstances offered by the State, including a prior crime of violence, and a particularly cruel and heinous manner in which this crime was committed, even if this killing wasn’t done to cover up a rape, it was still particularly cruel and heinous.
“I find there are no mitigating circumstances which would outweigh these and therefore the Hard-50 is applicable,”
Defendant contends the evidence was insufficient for the court to find that the aggravating factors outweighed the mitigating factors.
K.S.A. 2000 Supp. 21-4636 enumerates aggravating circumstances to be considered when imposing the hard 40 or hard 50 sentence. This statute was also amended in 1999 and provides in pertinent part:
“Aggravating circumstances shall be limited to the following:
“(a) The defendant was previously convicted of a felony in which the defendant inflicted great bodily harm, disfigurement, dismemberment or death on another.
“(e) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.
“(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;
(4) torture of the victim;
(5) continuous acts of violence begun before or continuing after the killing;
(7) any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.”
K.S.A. 21-4637 addresses mitigating circumstances and provides:
“Mitigating circumstances shall include, but are not limited to, the following:
“(a) The defendant has no significant history of prior criminal activity.
“(b) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“(c) The victim was a participant in or consented to the defendant’s conduct.
“(d) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“(e) The defendant acted under extreme distress or under the substantial domination of another person.
“(f) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
“(g) The age of the defendant at the time of the crime.
“(h) At the time of the crime, the defendant was suffering from posttraumatic stress syndrome caused by violence or abuse by the victim.”
STANDARD OF REVIEW
The parties cite an incorrect standard of review, relying on case law that was decided prior to our decision in State v. Spain, 263 Kan. 708, 714, 953 P.2d 1004 (1998).
In Spain, this court thoroughly discussed the standard of appellate review for a hard 40 sentence and concluded that the implicit standard of proof for aggravating circumstances under 21-4635(c) is a preponderance of the evidence. More recently, this court has reaffirmed the holding in Spain and held that where the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is 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. State v. Murillo, 269 Kan. 281, 287-88, 7 P.3d 264 (2000). Although K.S.A. 21-4635(c) was amended in 1999 to add the imposition of the hard 50 sentence for certain crimes committed after July 1, 1999, the amendment did not add any language which would have changed this standard of review. Therefore, the standard of review for a hard 50 sentence would be that which we have set out for a hard 40 sentence.
Where the trial court’s refusal to find a mitigating circumstance under K.S.A. 21-4637 is challenged by the defendant, the standard of review is whether, after ‘a review of all the evidence, viewed in a light most favorable to the defendant, a rational factfinder could have found by a preponderance of the evidence the existence of the mitigating circumstance. However, the trial court’s decision regarding whether a circumstance not enumerated as mitigating in the statute was truly a mitigating circumstance is within the trial court’s sound discretion and will not be disturbed on appeal absent abuse of discretion. Spain, 263 Kan. at 720.
In State v. Bedford, 269 Kan. 315, 332, 7 P.3d 224 (2000) (citing State v. Spain, 269 Kan. 54, Syl. ¶ 1, 4 P.3d 621 [2000]), we held that the trial court’s weighing of the aggravating and mitigating circumstances is within its sound discretion and will not be disturbed on appeal absent an abuse of discretion.
DISCUSSION
For its first aggravating factor the State contends the prior attempted rape conviction is sufficient to establish a prior crime wherein defendant was convicted of inflicting great bodily harm on another person. See K.S.A. 2000 Supp. 21-4636(a). Defendant argues no great bodily harm was shown by the evidence herein.
In State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995), the defendant argued there was insufficient evidence to support the trial court’s finding of the aggravating circumstance that he was previously convicted of a crime in which he inflicted great bodily harm on another. In finding this aggravating circumstance, the court relied on the defendant’s 1983 conviction for rape and aggravated sodomy. Specifically, Gideon argued that the crime of rape was insufficient to constitute great bodily harm and that there was no evidence that he inflicted great bodily harm above and beyond the crime of rape in the 1983 conviction.
We concluded that either conviction was sufficient to support this aggravating factor, reasoning:
“Our criminal code does not define great bodily harm. In State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984), this court stated:
‘Bodily harm has been defined as “any touching of the victim against [the victim’s] will, with physical force, in an intentional hostile and aggravated manner.” [Citation omitted.] The word “great” distinguishes the bodily harm necessary in [the offense of aggravated battery] from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.’
This court has held that rape constitutes sufficient bodily harm to support a conviction of aggravated kidnapping, see State v. Zamora, 247 Kan. 684, 695, 803 P.2d 568 (1990), but this court has not expressed an opinion whether rape constitutes great bodily harm.
“We hold that the conviction of the crime of rape or aggravated criminal sodomy is sufficient to find that the defendant inflicted great bodily harm. We decline to hold there are different degrees of rape and aggravated criminal sodomy, as defendant suggests, so as to require a finding that a prior rape or aggravated sodomy was worse than ‘ordinary’ or inherent in the elements of the crime before the crime constitutes great bodily harm. Rape and aggravated criminal sodomy are extremely invasive offenses constituting great bodily harm.” 257 Kan. at 614.
Here, defendant’s prior conviction was the attempted rape of his 13-year-old daughter. Other than rope marks on her arms that the victim was able to wash off, it does not appear that defendant physically injured her. This situation is quite different from that in Gid eon, where the court noted the extremely invasive nature of the offense of rape. Here, father attacked daughter in the bathroom of their home, he pushed her to the floor and tied her wrists, and he began to remove her clothing and his own. Although this prior offense was certainly gross and repugnant, it cannot be said to have caused great bodily harm as that term was applied in Gideon. There was no physical invasion of the body.
Defendant is also correct in noting that the sentencing court did not find defendant had a prior felony that caused great bodily harm; rather, the judge found that this was a prior crime of violence. The statute requires more than a crime of violence to support this aggravating factor. We must conclude there is insufficient evidence to support this aggravating factor.
The second aggravating factor claimed by the State is that defendant killed the victim to avoid or prevent a lawful arrest or prosecution. As previously noted, defendant advised the arresting officers that he killed the hound victim to prevent her from alerting the police. The State’s theory was that the victim would have reported the two rapes. Defense counsel argued that defendant took some cocaine from the victim during the incident and that it was this crime the victim threatened to report. There is no evidence or testimony that defendant took cocaine from the victim. Perhaps this dispute in theories is why the district court commented in its findings relative to aggravating circumstances: “[E]ven if this killing wasn’t done to cover up a rape, it was still particularly cruel and heinous.” The court made no finding the killing was done to prevent or avoid a lawful arrest or prosecution, and, accordingly, this statutory factor is not a basis for the imposition of the hard 50 sentence herein.
This brings us to the discussion of the district court’s finding that the murder was committed in a “particularly cruel and heinous manner.”
Defendant argues that the coroner made no determination as to which blow to the head killed the victim or whether she was conscious when the blows began. He also asserts that the fact that the victim may not have been conscious of her fate or conscious of her pain or suffering should be considered. Defendant acknowledges in his brief that in State v. Moncla, 262 Kan. 58, 936 P.2d 727 (1997), this court affirmed the sentencing court’s determination that 18 blows to the victim’s head with a claw hammer was an especially heinous, atrocious, and cruel manner of killing the victim. Defendant seeks to distinguish Moncla on the basis that, unlike Moncla, no defensive injuries were seen on the victim’s body. We note that the evidence in the case herein was that the victim’s hands were bound. We find no merit in this attempt to distinguish Moncla. As to defendant’s argument there was a lack of evidence regarding the victim’s state of consciousness when the blows began, such evidence is unnecessary to a finding that the crime was committed in an especially heinous, atrocious, or cruel manner under the current and applicable form of K.S.A. 2000 Supp. 21-4636(f).
As previously stated, where the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is 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. That standard has been met here in regards to K.S.A. 2000 Supp. 21-4636(f)(3), “infliction of mental anguish or physical abuse before the victim’s death” — defendant confessed to binding the victim and raping her before beating her to death, and (f)(5), “continuous acts of violence begun before or continuing after the killing” — defendant confessed to raping the victim twice before striking her 19 times in the head with a claw hammer.
The record amply supports the sentencing court’s determination that the killing was done in an especially heinous, atrocious, or cruel manner.
Defendant argues that the sentencing court erred in finding the aggravating factors outweighed the mitigating factors. As for mitigating factors, defendant’s argument in his brief is stated as follows:
“Livingston had the psychotic disorder, NOS [psychotic disorder not otherwise specified], at the time of the incident. He was also ‘not of a right mind’ at the time of the incident because of crack cocaine. And finally, he turned himself in and confessed the morning after the incident.
“At sentencing, Livingston made the following statement:
T know what I did was wrong and stuff and I’m sorry about what happened. I was smoking crack cocaine that night and I got hooked on something and I couldn’t handle. I’m not no killer but I don’t know, I got hooked to crack and I couldn’t handle it. Something like that had happened to me before. And I’m sorry and I pray for her every night and I pray for myself. I’m sorry for what happened.’
“Livingston was a crack addict with a serious psychotic disorder. His disorder was controllable with medication. The only aggravating factor for sentencing him to the Hard 50 was the fact that he, in one continuous act, killed Ms. Lowery with a hammer. He started swinging a hammer and couldn’t stop. His remorse was evidenced by the fact that he turned himself in the next morning. He didn’t run. He didn’t hide. He recognized that his drug induced, possibly psychotic, episode resulted in the tragic death of Ms. Lowery. He lost control of himself, but was willing to accept responsibility for his acts.”
The evidence of psychotic disorder came from the report sent to the district court relative to the evaluation requested by the defense as to defendant’s competency prior to trial. The report concluded defendant was competent to stand trial. There is nothing in the report indicating defendant was psychotic at the time of the slaying.
Livingston delivered 19 blows to the victim’s head with a claw hammer while her hands were tied and after having, by his own admission, two acts of nonconsensual sex with her. Balanced against these stark facts are assertions regarding Livingston’s alleged psychotic disorder and his feelings of remorse. The overwhelming disparity between 19 blows with a claw hammer and the weak mitigating factors presented by Livingston renders remand to the sentencing court unnecessary. Under such circumstances we can conclude with certainty that the aggravating factor herein was not outweighed by the claimed mitigating factors. The sentence imposed was proper.
One final matter remains. As noted by defendant:
“[T]he sentencing court did not follow K.S.A. 21-4635(c) and designate, in writing, the statutory aggravating circumstances which it found. The lack of a written statement in the journal entry should be corrected by a nunc pro tunc order, incorporating into the journal entry the findings made on the record by the court at the time sentence was pronounced. State v. Moncla, 262 Kan. at 79.”
This was the procedure employed in Monda to correct the omission and should be utilized herein in order that the one aggravating factor affirmed herein may be incorporated into the journal entry.
The judgment is affirmed, and the case is remanded for entry of a nunc pro tunc order. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is a grandparent visitation matter. It is the consolidated appeal of rulings in two cases that are adverse to Melinda Skov, Norma Tankersley, and Raymond Tankersley. They filed a post-decree motion pursuant to K.S.A. 2000 Supp. 60-1616(b) in the divorce action of Skov’s daughter, Mona Wicker, from Sean Boydston seeking court-ordered visitation rights to the children, H.B. and T.B., Case No. 85,917. Their motion was overruled. Skov and the Tankersleys also filed suit pursuant to K.S.A. 38-129(a) against Mona and her current husband, Vance Wicker, seeking court-ordered visitation rights to the child, V.W., Case No. 85,916. The district court dismissed their petition. The Wickers cross-appeal.
Skov is the grandmother of the children. Norma Tankersley is Skov’s mother and the great-grandmother of the children. Raymond Tankersley was married to Norma Tankersley and was the step great-grandfather of the children. The court was advised in July 2001 of Mr. Tankersley’s death.
The district court overruled the Skov/Tankersley post-decree motion and dismissed their petition on the grounds that K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129(a) are unconstitutional. Skov and the Tankersleys appeal from the rulings. Mona Wicker cross-appeals from the district court’s ruling that great-grandparents are grandparents within the meanings of the statutes.
The appellants’ motion in the divorce action and their separate petition were dismissed with no evidence having been adduced. The following facts are taken from the pleadings and court records in the district court cases.
Case No. 85,917. Mona Wicker was granted a divorce from Sean Boydston in May 1991. Joint custody, with Mona Wicker having residential custody and Sean Boydston having reasonable rights of visitation, was ordered. There were many subsequent filings and proceedings having to do with child support payments and child custody. In March 1999, the district court ordered the parties to attend mediation to resolve their custody or visitation issues, which resulted in an agreement that Mona Wicker would retain residential custody. In November 1999, the court ordered Boydston to resume paying child support and providing health insurance.
In April 2000, Skov and the Tankersleys filed their motion pursuant to K.S.A. 2000 Supp. 60-1616(b) seeking an order for visitation rights. Movants stated:
“1. That in the past they have had significant contact with the parties’ minor children, [H.B. andT.B.].
“2. That [Mona Wicker] currently has residential custody of the minor children.
“3. That [Mona Wicker] is failing and refusing to allow the grandmother and great-grandparents to have any visitation with the minor children.
“4. That die grandmother, Melinda Skov, and the great-grandparents desire to have set and regular visitation, including summer visitation.”
Mona Wicker opposed the motion for visitation rights.
Case No. 85,916. In April 2000, Skov and the Tankersleys filed a petition against Vance and Mona Wicker. They alleged
“[t]hat the plaintiffs bring this petition pursuant to K.S.A. 38-129, which allows die District Court to grant die grandparents of an unmarried minor child reasonable visitation rights to the child during die child’s minority upon finding that visitation rights would be in die child’s best interests and when a substantial relationship between die child and grandparent has been established.”
They sought “regular and specific visitation rights with their granddaughter and great-granddaughter, [V.W.].”
The Wickers filed a motion to dismiss the petition.
Counsel argued the motions to the district court. At the hearing, the district court expressed agreement with the Wickers. The dis trict court later filed an order of dismissal in each case. In essence, the orders state:
1. The term “grandparent” in the statutes includes great-grandparents.
2. Raymond Tankersley, who is the step great-grandparent of the children, is not a grandparent within the meaning of the statutes.
3. Absent a finding of unfitness, under Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), a parent has the right to decide with whom his or her child has contact.
4. In view of Troxel, the Kansas statutes regarding grandparent visitation, K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129, are unconstitutional.
The first issue raised on appeal is whether K.S.A. 38-129(a) is unconstitutional. Mona Wicker concedes that this court’s decision in Kansas Dept. of S.R.S. v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001), controls and that the district court erred in ruling that K.S.A. 38-129(a) is unconstitutional under Troxel. Thus, Case No. 85,916 must be remanded for further proceedings in accordance with Paillet.
Mona Wicker does not concede that K.S.A. 2000 Supp. 60-1616(b) is constitutional. Her position on the constitutionality of 60-1616(b) is that the district court correctly concluded that it is unconstitutional on its face. She argues that the complete lack of limitations on the district court’s authority to grant visitation rights and the lack of any deference to the wishes of the parents could not pass the due process standard established in Troxel and applied by this court in Paillet. She further argues that the statute cannot be construed so that it satisfies the due process requirements set out in Troxel.
The appellants’ arguments do not take Paillet into account. This court issued its opinion in Paillet after appellants’ brief was filed; they did not file a reply brief or a cross-appellees’ brief.
In deciding Paillet, this court did not find K.S.A. 38-129 unconstitutional on its face. The court, however, found that the statute had been unconstitutionally applied. 270 Kan. at 660. The court stated:
“K.S.A. 38-129 requires a finding of both the best interests of die child and a substantial relationship established with die grandparents. Neidier requirement is called into question by die Supreme Court’s decision in Troxel. However, since we have determined diat die Paillets did not meet their burden of proof as to both requirements of the statute, it would serve no purpose to remand the matter to the district court.” 270 Kan. at 660.
Mona Wicker contends that K.S.A. 2000 Supp. 60-1616(b), on its face, does not satisfy the due process requirements set out in Troxel. The statute, which is part of the divorce and maintenance provisions of article 16 of the civil procedure chapter, provides in its entirety: “Grandparents and stepparents may be granted visitation rights.” K.S.A. 2000 Supp. 60-1616(b). The statute places no limitations on the district court’s discretion to grant visitation rights to grandparents.
The question of the constitutionality of K.S.A. 2000 Supp. 60-1616(b) requires an interpretation of the statute. The court’s review of a question of law is unhmited. We presume that a statute is constitutional and resolve doubts in favor of its validity. “This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if this can be done within the apparent intent of the legislature in passing the statute.” State v. Martinez, 268 Kan. 21, Syl. ¶ 2, 988 P.2d 735 (1999).
First, Mona Wicker argues that the apparent intent of the legislature will not permit a constitutional construction of K.S.A. 60-1616(b). She contends that the legislature intended for there to be no limitations on grandparent visitation that can be ordered in a divorce action and that the intention can be ascertained from comparison of the legislature’s enacting the current forms of 60-1616(b) and 38-129(a). She would have the court compare L. 1982, ch. 152, § 15 with L. 1982, ch. 182, § 149. Her basic contention is that the two statutory provisions were enacted in the same legislative session, from which we reasonably can infer that the legislature intended them to serve different purposes and intended that 38-129 should be conditional and 60Tl616(b) should not. Examination of the session laws does not bear out her argument.
Chapter 152 of the 1982 Session Laws is an act concerning domestic relations and divorce: In that act, the legislature repealed the grandparents’ visitation rights provision from K.S.A. 1981 Supp. 60-1610. L. 1982, ch. 152, § 9. The repealed subsection provided a means for the parents of a noncustodial parent who did not or could not exercise his or her visitation rights to petition for visitation rights on their own account. The subsection was repealed when joint custody was instituted in the same enactment. L. 1982, ch. 152, § 9. A new visitation section was created that included the current provision for grandparent and stepparent visitation. L. 1982, ch. 152, § 15.
Subsection (a) of K.S.A. 38-129 was enacted in 1971. The legislature made no substantive changes to it in 1982. With the insubstantial word changes made in 1982, it provided:
“If either the father or mother of an unmarried minor child is deceased, the parents of such deceased person may be granted reasonable visitation rights to die minor child during its minority by the district court upon a finding diat such visitation rights would be in the best interests of the minor child.” L. 1971, ch. 149, J 1.
In 1982, the legislature added new subsection (b) to K.S.A. 38-129. L. 1982, ch. 182, § 149. It authorized the district court to grant or enforce visitation rights to the grandparents of a child who has been adopted by the new spouse of the surviving parent. The new subsection provided:
“(b) Unless the court finds that the visitation rights are not in the child’s best interests, the district court may grant visitation rights, or enforce visitation rights previously granted, pursuant to this section, even if the surviving parent has remarried and the surviving parent’s spouse has adopted the child. Visitation rights may be granted pursuant to this subsection without regard to whether the adoption of the child occurred before or after the effective date of this act.” L. 1982, ch. 182, § 149.
Thus, in 1982 60-1616(b) governed grandparent visitation rights where the parents were divorced, and 38-129 governed grandparent visitation rights where one parent was deceased.
In 1984, the legislature greatly broadened 38-129(a) by eliminating the need for a parent to be deceased in order for the grandparents to be eligible for court-ordered visitation rights pursuant to the provision:
“(a) If a parent of-an-unmarried minor child is deceased,- The district court may grant the parcnts-of-the-deceascd person grandparents of an unmarried minor child reasonable visitation rights to the minor child during the child’s minority upon a finding that the visitation rights would be in die child’s best interests and when a substantial relationship between the child and the grandparent has been establihed L.184, ch 152, § 1.
This examination of the legislative evolution of the current provisions, K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129(a), does not bear out Mona Wicker’s contention. The basis for her argument was that the two provisions were enacted in the same session in 1982 for two different purposes. K.S.A. 38-129(a), however, was enacted in 1971, insubstantially modified in 1982, and substantially broadened in 1984.
Second, Mona Wicker argues that there is no way the court can construe K.S.A. 2000 Supp. 60-1616(b) so that it satisfies due process without contravening legislative intent. The obvious way to give the statute a constitutional construction would be to read the limitations of 38-129(a) into it. Mona Wicker, however, contends that the legislature’s enacting a separate, unlimited provision for grandparent visitation in divorce actions demonstrates its intent to permit unlimited grandparent visitation rights in divorce circumstances. We disagree.
With the amendment in 1984 of 38-129(a), it became the more general of the two grandparent visitation statutes. K.S.A. 2000 Supp. 60-1616(b) applies in the specific situation where the parents are divorced. K.S.A. 38-129(a) applies generally. It is well established that “[g]eneral and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” In re Estate of Antonopoulos, 268 Kan. 178, Syl. ¶ 6, 993 P.2d 637 (1999). In this case, the difference between the two statutes is the absence of limitations in 60-1616(b), and it is that absence that runs afoul of the reasoning of Paillet and Troxel.
In In re Adoption of Baby Boy L., 231 Kan. 199, 223, 643 P.2d 168 (1982), we said:
“In examining the constitutionality of any statute there are certain basic principles which must be adhered to:
“We start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather tiran defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done.’ Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, Syl. § 1, 618 P.2d 778 (1980).
‘A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications.’ Flax v. Kansas Turnpike Authority, 226 Kan. 1, Syl. § 6, 596 P.2d 446 (1979).
“The corollary of Flax, of course, is that a statute apparently void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading tire necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will cany out the intent of the legislature. State v. Motion Picture Entitled ‘The Bet,’ 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).”
In State v. Motion Picture Entitled ‘The Bet’ 219 Kan. 64, 547 P.2d 760 (1976), this court considered a constitutional challenge based on the definition of obscene material in K.S.A. 21-4301(2)(Weeks). That definition did not conform to the constitutional requirements as stated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). The district court, however, found the films to be obscene by construing the statute to conform to the requirements of the Miller decision. The district court simply read the Miller requirements into our statute. We affirmed, stating: “This court has on previous occasions seen fit to construe and limit criminal statutes in such a way as to uphold their constitutionality by reading judicial requirements into statutes which otherwise were over-broad.” 219 Kan. at 70. Here, the intent of the legislature is to provide for grandparent visitation in divorce actions'. We have the authority and duty to construe K.S.A. 2000 Supp. 60-1616(b) to carry out that intent in a constitutional manner.
K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129(a) can be harmonized and construed as constitutionally valid by reading the limitations of the latter into the former. We construe K.S.A. 2000 Supp. 60-1616(b) to include the requirements set out in K.S.A. 38-129(a) and conclude the district court erred in holding that it was unconstitutional. Thus, Case No. 85,917 must also be remanded, and on remand appellants have the burden of proving that such visitation is in the child’s best interest and that a substantial relationship with the grandchildren exists. In addition, the district court must give special weight to the fundamental presumption that a fit parent will act in the best interests of his or her child.
The final issue raised by the appellants is whether Norma Tanlcersley’s husband, Raymond Tankersley, the step great-grandfather of the children, is a grandparent within the meaning of the statutes. On July 24, 2001, appellants’ attorney filed a motion in which it is stated that Raymond Tankersley died. This issue, therefore, is moot.
We next turn to Mona Wicker’s cross-appeal in which she challenges the trial court’s ruling that the term “grandparent” in the statute includes great-grandparent. Wicker directs the court’s attention to the rule of statutory construction that calls for strict construction of a statute that imposes limitations on the power to exercise a fundamental constitutional right. See Eveleigh v. Conness, 261 Kan. 970, Syl. ¶ 3, 933 P.2d 675 (1997). In this case, the pertinent statutes impose limitations on a parent’s power to exercise the fundamental right to make decisions about the care and custody of her or his children. See Troxel, 530 U.S. at 66. Wicker relies on In re Hood, 252 Kan. 689, 847 P.2d 1300 (1993), and Sowers v. Tsamolias, 262 Kan. 717, 941 P.2d 949 (1997), in arguing that this court already has established a pattern of strictly construing the grandparent visitation statute. In Hood, an unrelated third party who claimed a “grandparent like” relationship with the minor child sought visitation rights under K.S.A. 38-129. The court held that the grandparent visitation statute does not grant standing to an unrelated 'third party. 252 Kan. 689, Syl. ¶ 1. In Sowers, the natural grandparents of a child sought visitation rights under K.S.A. 38-129 after the child had been adopted by foster parents. The petitioners were raising the sister of the child who had been adopted. 262 Kan. 717. Dismissal of their petition was affirmed on the ground that adoption created new grandparents as well as new parents and the biological grandparents were no longer grandparents within the meaning of K.S.A. 38-129. 262 Kan. 717, Syl. ¶ 1. The court in Hood and Sowers construed the term “grandparents” in the statute very narrowly in holding that it may not be extended to an unrelated person and does not include blood relatives whose legal status as grandparents was altered by adoption. Neither Hood nor Sowers is directly controlling of the present case, but the precedent of strict construction of the term “grandparents” in K.S.A. 38-129 is persuasive and will be followed in the absence of some reason to the contrary.
Appellants provide no such reason. They concede that neither K.S.A. 2000 Supp. 60-1616(b) nor K.S.A. 38-129(a) expressly permits visitation to great-grandparents. Without citing authority or developing a rationale, they simply assert the belief that the district court correctly included great-grandparents within the meaning of the statutes. We therefore strictly construe the statutes and conclude that great-grandparents are not included within the term “grandparents.”
Reversed and remanded with directions. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is a medical malpractice action arising from an undiagnosed ventriculoperitoneal shunt malfunction which ultimately caused permanent brain damage to Ashley Irvin. Irvin and her parents filed suit against several parties. The district court granted summary judgment in favor of Dr. Richard C. Gilmartin on the basis that there was no physician-patient relationship. All of the other parties have either been dismissed or settled prior to trial, except for the suit against Dr. Lindall E. Smith. The jury returned a defendant’s verdict in favor of Smith. Irvin raises several issues on appeal. Smith has also filed a cross-appeal raising two issues.
Irvin was bom 6 weeks premature with hydrocephalus, a condition which required the surgical placement of a ventriculoperitoneal or “VP” shunt. The shunt is a pump with a tube. The tube extends from the brain to the abdomen. The purpose of the shunt is to drain excess cerebrospinal fluid from the skull. Once the fluid is drained from the brain, it is reabsorbed into the body through the abdomen. Without the shunt, Irvin would die. With a properly operating shunt, however, a hydrocephalic can five a normal life. The shunt was placed in Irvin at 2 days of age by her neurosurgeon, Dr. Edwin MacGee.
On October 15, 1995, 12-year-old Irvin began experiencing flu-like symptoms and seizures. She also complained of neck and back pain. On October 18, Irvin was transported by fife flight from Bob Wilson Memorial Hospital in Ulysses, Kansas, to St. Luke’s Hospital in Kansas City, Missouri. At St. Luke’s, Irvin was examined by MacGee to determine whether the shunt was working properly. During the 12 years the shunt had been in place, MacGee had performed two other surgeries on the shunt.
On October 19, MacGee determined there was no shunt malfunction. MacGee recalled speaking to an unidentified radiologist about the shunt. The radiologist told him that there was at least 2 inches of shunt tubing remaining in the abdomen. Dr. Karen Divelbiss, who did the official read of the shunt series, reported nothing wrong with the shunt. On October 21, Irvin was discharged and went home. The x-rays taken at St. Luke’s, however, revealed at trial that the distal end of the shunt tubing had pulled up into the abdomen wall due to Irvin’s growth, intermittently blocking the flow of cranial fluid into the abdominal cavity.
On October 23, 1995, MacGee wrote Dr. Michael Shull, Irvin’s pediatrician in Garden City, Kansas, arid told him that the “shunt appeared to be working well.”
Irvin’s seizures, nausea, vomiting, and neck and back pain soon returned. On November 12, Irvin was admitted to St. Catherine’s Hospital in Garden City, Kansas. At St. Catherine’s Hospital, Irvin was examined by Shull. Shull worried that the shunt had malfunctioned. X-rays were taken of Irvin’s chest and abdomen. The radiologist concluded that no abnormalities were present and reported nothing wrong with the shunt tubing. On November 13, Shull spoke with MacGee regarding Irvin’s condition. MacGee indicated that he thought Irvin’s shunt was operating correctly and instructed Shull to treat Irvin with hydration and seizure control medication to see if her symptoms would improve. Shull ordered an MRI of the brain to check for increased intracranial pressure caused by the shunt malfunction. The MRI was negative.
Irvin continued to experience nausea, vomiting, neck pain, and seizures on November 13 and 14. On November 14, Shull ordered Irvin to be transported by life-flight from St. Catherine’s Hospital to Wesley Medical Center (Wesley) in Wichita, Kansas. Prior to her transfer, Shull spoke with Smith, a pediatric intensivist, at Wesley. Shull and Smith discussed Irvin’s condition, histoiy, symptoms, Shull’s concern about her seizures, and the possibility of a shunt malfunction. Smith approved the transfer and use of the air ambulance. Shull also ordered additional x-rays.
Smith admitted Irvin at Wesley with x-ray films which showed the outlet or “tip” of her shunt embedded in the muscle of her abdominal wall in a position requiring that it be repaired. Smith testified that he could not remember whether he looked at the x-ray films, however. He admitted that had he looked at the films he would have seen that the shunt needed to be repaired. Smith explained that he could not remember looking at the x-ray films because he was led to believe that a radiologist in Garden City had already read the x-rays and had concluded that they were “negative.” No doctor in Garden City ever looked at Irvin’s x-ray films.
On November 14, Smith made a telephone call to obtain a “neurological consult” from Gilmartin, a child neurologist, because Smith thought that Gilmartin was “the best consultant to use to help evaluate Ashley.” Gilmartin and Smith discussed performing a shuntogram. A shuntogram is a procedure which involves injection of a radioactive isotope into the shunt to check for shunt blockage. After the consultation, a shuntogram and EEG were ordered for the following morning to be performed by Gilmartin and Smith. Gilmartin and Smith planned to do the shuntogram the next morning because Irvin appeared stable, alert, and conscious between seizures. Neither Smith nor Gilmartin believed that her symptoms indicated an impending shunt malfunction.
The next morning, November 15, Irvin was alert, awake, and verbal. At approximately 8:45 a.m., however, prior to any tests being performed to determine the status of the shunt, Irvin’s condition deteriorated, became critical, and required that she be resuscitated and intubated.
At approximately 11:30 a.m., Irvin’s condition became worse as her pupils dilated and became unresponsive to light. The shuntogram was finally performed, and it was determined that the shunt was obstructed. Surgery was performed to correct the shunt malfunction.
Prior to undergoing the shuntogram procedure, Irvin suffered permanent and severe brain damage. Specifically, Irvin suffered an ischemic brain injury as a result of lack of oxygen to the brain, which resulted in severe neurological impairment. Irvin was placed on a ventilator on November 15, on which she remained until December 6. Irvin then remained at Wesley until January 5, 1996. Since her discharge, Irvin has received continuous care, treatment, and rehabilitation. Irvin’s condition requires that she be fed through a gastrostomy tube. Irvin is unable to walk or speak, is incontinent, and requires full-time care.
Irvin and her parents filed suit in the Sedgwick County District Court against MacGee, Neurology/Neurosurgery P.C., Smith, Gil-martin, and Wesley Medical Center. Irvin subsequently added St. Luke’s Radiological Group, Divelbiss, and Columbia/HCA Healthcare Corporation (Columbia). Neurology/Neurosurgeiy P.C. and MacGee settled early and were dismissed. St. Luke’s Radiological Group and its employee Divelbiss (who had moved to Pennsylvania) moved to dismiss for lack of personal jurisdiction. The motion was denied as to St. Luke’s but granted as to Divelbiss. Irvin subsequently voluntarily dismissed her claim against St. Luke’s.
Gilmartin moved for summary judgment, arguing that he owed no duty to Irvin as there was no physician-patient relationship. The district court agreed and granted summary judgment in favor of Gilmartin.
There have been three juiy trials in this matter. The first case was tried in Sedgwick County before a juiy in March 1999 against Columbia, Smith, and Wesley. The trial resulted in a directed verdict in favor of Columbia and a hung jury for Smith and Wesley. Irvin subsequently settled her claims against Wesley.
The second jury trial took place in November 1999 in Jackson County, Missouri, and resulted in a verdict of $1,770,391.08 against St. Luke’s and Divelbiss. Irvin sought the same damages that were claimed in the Sedgwick County action. Irvin filed a motion for additur or in the alternative a motion for a new trial. The district court granted the motion for a new trial and vacated the verdict. Irvin subsequently settled with St. Luke’s and Divelbiss for the full amount of the verdict.
The third juiy trial took place in Sedgwick County in Januaiy 2000. The only defendant in the third juiy trial was Smith. The jury returned a verdict finding no fault on the part of Smith. Irvin filed a motion for a new trial, which was denied by the court. It is from the third juiy trial and the dismissal of Gilmartin that this appeal arises. Smith has also filed a cross-appeal in this matter.
I. SUMMARY JUDGMENT IN FAVOR OF GILMARTIN
Irvin argues that the district court erred in granting summary judgment in favor of Gilmartin by holding that no physician-patient relationship existed between Gilmartin and Irvin.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidénce, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Prior to trial, Gilmartin moved for summary judgment, arguing that he owed no duty to Irvin because he had no physician-patient relationship with her. The district court agreed and granted the motion, stating:
“As to Mr. Day’s Motion for Summary Judgment, my first reaction in this case is to offer the question as to whether or not a physician/patient relationship existed to the jury as a fact question; certainly [that] is the easiest thing to do. However, it is clear that the courts may and should decide under a number of different fact scenarios on a motion for summary judgment whether or not a physician/patient relationship exists, specifically whether or not such a relationship exists for a consulted physician.
“Now, I’m most concerned with the fact there is an obvious lack of Kansas law on this particular issue. I am willing to look to odier jurisdictions for guidance, and I have done as much of my own research as I can also on the matter.
“It seems to me that while the scenarios can vary as to the facts involved and die facts looked at by appellate courts, those cases concerning die existence of a physician/patient relationship look to some facts other dian the phone conversation itself, in that diere is a contract, the doctor was on call, the doctor offered or gave direction for immediate medical care and treatment that he anticipated would be accepted and was accepted. Did offering to provide — or, I guess, agreeing to provide a further physical exam in the morning and conducting a shuntogram create that further fact that would give rise to a physician/patient relationship on the evening of November 14th? My interpretation of all the prior case law that has been presented in this case directs me in this case that the relationship did not exist until die 15di. The Motion for Summary Judgment is granted.”
The plaintiff in a medical malpractice case bears the burden of proof in establishing the elements of the negligence claim. The existence of the duty of care is dependent on the existence of a physician-patient relationship. See Reynolds v. Decatur Memorial Hosp., 277 Ill. App. 3d 80, 85, 660 N.E.2d 235 (1996) (duty of physician is limited to situations where there is a physician-patient relationship); Doherty v. Hellman, 406 Mass. 330, 333, 547 N.E.2d 931 (1989) (plaintiff has the burden to demonstrate existence of physician-patient relationship in order to prove medical malpractice claim); Millard v. Corrado, 14 S.W.3d 42, 49 (Mo. App. 1999) (physician-patient relationship is “essential” to medical malpractice claim); McKinney v. Schlatter, 118 Ohio App. 3d 328, 332-37, 692 N.E.2d 1045 (1997) (cannot find that physician breached duty where no physician-patient relationship exists); St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995) (physician cannot be liable for malpractice where there is no physician-patient relationship).
Courts have concluded, as has this court, that whether a physician-patient relationship exists is generally a question of fact for the jury. See Rule v. Cheesman, Executrix, 181 Kan. 957, 964-65, 317 P.2d 472 (1957). See also Dodd-Anderson v. Stevens, 905 F. Supp. 937, 944 (D. Kan. 1995), aff'd 107 F.3d 20 (10th Cir. 1997) (in Kansas, following the Rule case, the existence of a physician-patient relationship is a question of fact); Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 524, 434 S.E.2d 63 (1993) (existence of physician-patient relationship is question of fact for jury); Gallion v. Woytassek, 244 Neb. 15, 20, 504 N.W.2d 76 (1993) (purview of jury to determine whether physician-patient relationship exists); Cogswell v. Chapman, 249 App. Div. 2d 865, 866, 672 N.Y.S.2d 460 (1998) (it is generally a question of fact for the jury whether an implied physician-patient relationship exists); Tumblin v. Ball-Incon Glass Packaging, 324 S.C. 359, 365, 478 S.E.2d 81 (Ct. App. 1996) (existence of physician-patient relationship is question of fact for the jury); Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103 (1977) (physician-patient relationship is a question of fact).
A physician-patient relationship may be found and summary judgment may be considered, however, “where the facts are shown by such clear, palpable, and undisputed evidence that the jury could reasonably draw but one conclusion.” Walker, 209 Ga. App. at 524.
Generally, a physician-patient relationship is created only where the physician personally examines the patient. Millard, 14 S.W.3d at 49. A physician’s indirect contact with a patient, however, does not preclude the finding of a physician-patient relationship. Adams v. Via Christi Regional Med. Center, 270 Kan. 824, 835, 19 P.3d 132 (2001). See also McKinney, 118 Ohio App. 3d at 336 (lack of direct contact between physician and patient does not preclude the finding of a physician-patient relationship); Cogswell, 249 App. Div. 2d at 866 (physician-patient relationship can be established by a telephone call to physician); Millard, 14 S.W.3d at 49 (physician-patient relationship may be found even in the absence of contact between the physician and patient); St. John, 901 S.W.2d at 424 (physician-patient relationship does not require a formal contract and may be implied by the circumstances). A physician-patient relationship may be found where a physician is contacted by someone on behalf of the patient. Reynolds, 277 Ill. App. 3d at 85. Indeed, an implied physician-patient relationship maybe found where the physician gives advice to a patient by communicating the advice through another health care professional. Campbell v. Haber, 274 App. Div. 2d 946, 946-47, 710 N.Y.S.2d 495 (2000).
A physician who gives an “informal opinion,” however, at the request of a treating physician, does not owe a duty to the patient because no physician-patient relationship is created. See Oliver v. Brock, 342 So. 2d 1, 4 (Ala. 1976) (no physician-patient relationship found where physician never met with patient, did not even know the patient’s name, and merely conversed with treating physician on “gratuitous” basis); Hill v. Kokosky, 186 Mich. App. 300, 304, 463 N.W.2d 265 (1990) (opinion directed at treating physician to do with “as he saw fit” does not create physician-patient relationship); Reynolds, 277 Ill. App. 3d at 85 (informal opinion from consulting physician at request of treating physician does not create physician-patient relationship); Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. Civ. App. 1993) (physician cannot be liable where he or she merely consulted with treating physician and nothing more). A physician who assumes the role of treating the patient, however, can be liable for medical malpractice. Tumblin, 324 S.C. at 365; Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 39-40. (Tex. Civ. App. 1993).
In Adams, we recently discussed the foundational requirements for the existence of a physician-patient relationship, stating:
“A physician-patient relationship is consensual. Thus, where there is no ongoing physician-patient relationship, the physician’s express or implied consent to advise or treat the patient is required for the relationship to come into being. Stated odierwise, the doctor must take some affirmative action with regard to treatment of a patient in order for die relationship to be established.” 270 Kan. at 835.
See also Reynolds, 277 Ill. App. 3d at 85 (relationship between physician and patient is consensual and is founded in “trust and confidence”); Millard, 14 S.W.3d at 49 (relationship is consensual and exists where the patient or someone acting on his or her behalf employs a physician who consents to treat the patient); Tracy v. Merrell Dow Pharmaceuticals, 58 Ohio St. 3d 147, 150, 569 N.E.2d 875 (1991) (physician-patient relationship is consensual and may be either implied or an express relationship); Tumblin, 324 S.C. at 365 (physician-patient relationship may be established when patient seeks assistance of physician and physician accepts patient).
In the present case, Irvin argues that the undisputed facts show that there was a physician-patient relationship between Gilmartin and Irvin and that the district court erred in granting summary judgment in favor of Gilmartin. The facts, Irvin argues, show that Gilmartin received a lengthy telephone call from Smith during which they engaged in a detailed conversation about the condition, care, and treatment of Irvin. Gilmartin was called because of his experience and expertise as a pediatric neurologist. Gilmartin was not an employee of the hospital and was not “on call” the night he received the phone call from Smith. As a result of the conversation, Gilmartin testified he had a “complete picture of Ashley Irvin’s presentation” and that he had surmised that Irvin’s condition was “stable.” Gilmartin further testified that he and Smith “jointly developed a plan for the evaluation of Ashley Irvin” and that he assumed primary responsibility for performing the shuntogram tests the next day.
Before receiving a call from Smith on November 14, 1995, Gil-martin had never had contact with Irvin or her family and had no .involvement of any kind in her medical care. Clearly up to that point, there was no physician-patient relationship. Gilmartin was not “on call” on November 14, 1995, and was subject to no contractual obligation which would require him to attend any patients at Wesley.
During the evening of November 14, 1995, Smith called Gil-martin and asked him to perform a consultation on Irvin. The working diagnosis at the time was new onset seizure disorder, with concern over possible shunt malfunction. The two doctors discussed the case and it was agreed that Gilmartin would see the patient the next morning, carry out a formal consultation, and assist in conducting the diagnostic test known as a shuntogram. Gilmartin’s position is that he had no duty as a physician until he assumed a physician-patient relationship with Irvin on the morning of November 15, 1995. Without a legal duty, there can be no compensable negligence.
Whether a physician owes a legal duty to a patient under a particular circumstance is a question of law. It is not a question of fact or of negligence. Absent the existence of a physician-patient relationship, there can be no liability for medical malpractice.
The mere act of a physician agreeing to see a patient at a later time does not begin the relationship. Nor does the fact that a plaintiff produces an expert witness who will testify that a particular act or omission constitutes “a departure from the standard of care” establish that a duty exists as a matter of law. See, e.g., Calwell v. Hassan, 260 Kan. 769, 925 P.2d 422 (1996). Actionable negligence must be based upon breach of duty. Honeycutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992); Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989). Whether a legal duty exists is a question of law. Colwell, 260 Kan. at 777; Boulanger v. Pol, 258 Kan. 289, 298, 900 P.2d 823 (1995). See Dodd-Anderson, 905 F. Supp. at 945-46. Whether the duty has been breached becomes a question of fact for the jury. However, when the controlling facts are not at issue, the question becomes one for the court. Without a duty, there can be no breach. See Colwell, 260 Kan. at 777-78, 789.
Here, the sole involvement of Gilmartin was as a private practitioner who had been asked to cany out a consultation the following day. The formal consultation refers to a full bedside review of the case which includes a physical examination of the patient. At the time Gilmartin spoke with Smith, Gilmartin had not examined Irvin, had not reviewed her hospital chart, and had never spoken with either her or her parents. The only information he had was what he had been told by Smith. There is no claim that Gilmartin entered any orders in the case or took any other action other than discussing the case in general terms with Smith and agreeing to consult the next day. This, by itself, does not create a physician-patient relationship.
This case, to a large extent, boils down to public policy concerns. The type of telephone conversation that took place here takes place on a frequent basis in the medical profession and is vital to the treatment of patients. For the courts to discourage such conversations is not to the patients’ or the public’s best interests.
II. PHYSICIAN-PATIENT RELATIONSHIP
Courts have used great caution when responding to requests that they recognize legal duties within this medically important but legally ambiguous world of the curbside consultation. Indeed, the published decisions are unanimous in agreeing that extension of the physician-patient relationship to include this type 'of informal consultation would be contrary to public policy. “Imposition of liability under these circumstances would not be prophylactic but instead counter-productive by stifling efforts at improving medical knowledge. Rainer v. Grossman, 31 Cal. App. 3d 539, 544, 107 Cal. Rptr. 469 (1973). See Hill, 186 Mich. App. at 303-06; Lopez, 852 S.W.2d at 307. A good expression of these public policy concerns appears in Reynolds, 277 Ill. App. 3d at 86, as follows:
“Plaintiffs suggest that what needs to be done is to find a physician-patient relationship to result from every such conversation. The consequence of such a role would be significant. It would have a chilling effect upon practice of medicine. It would stifle communication, education and professional association, all to the detriment of the patient. The likely effect in adopting plaintiffs' argument also would be that such informal conferences would no longer occur.”
Courts have taken these public policy concerns to heart and have routinely refused to extend liability for medical malpractice to doctors who have acted solely in the role of an informal or curbside consultant. This has been true even when the doctors’ involvement in giving advice to the attending physician has been very extensive. In NBD Bank v. Barry, 223 Mich. App. 370, 566 N.W.2d 47 (1997), for example, the patient’s attending physician, Dr. Miller, contacted the defendant, Dr. Bariy, “on multiple occasions” asking his opinion of the patient’s case. Not only did Bariy discuss the case and make recommendations to Miller, he apparently even reviewed the chart once with Miller. However, Bariy did not formally consult on the case and never contacted or examined the patient. In upholding summary judgment for Bariy, the court concluded that contacts with Miller fell into the context of an informal consultation which did not create a physician-patient relationship with the patient. 223 Mich. App. at 372-73. Absent such a relationship, Bariy owed no duty of care to the patient. While he had offered opinions to Miller, these “were simply recommendations that Miller was free to accept or reject.” 223 Mich. App. at 373.
The same result was reached in Reynolds, 277 Ill. App. 3d 80, a case with facts strikingly similar to the present case. There, a young boy who came to the emergency room had a history of falling at home. A pediatrician, Dr. Bonds, was called to the emergency room and assessed the child. The child had a fever of 102 degrees. At this point, Bonds called a colleague, Dr. Fulbright, and gave him a run down on the child’s condition. Fulbright asked if the child had a stiff neck; Bonds checked and reported that he did. At the conclusion of the conversation, Fulbright recommended that a spinal tap be performed to rule out meningitis or a similar infectious process; this was done by Bonds. Unfortunately, the child was ultimately found to have had a spinal cord injuiy as opposed to an infectious process. His injuries left him permanently quadriplegic. The plaintiffs’ expert witnesses in the case alleged that Fulbright had been negligent in making recommendations without first examining the patient. In rejecting this claim, the trial court granted summaiy judgment to Fulbright. On appeal, the court upheld the summary judgment concluding that there was no evidence that Fulbright had ever developed a physician-patient relationship with the patient. 277 Ill. App. 3d at 85, 87. Of particular importance to this case, the court concluded that the law does not “require a physician to enter into a physician-patient relationship with eveiy person treated in the hospital whose treating physician might make an informal inquiry about that case.” 277 Ill. App. 3d at 86. See Schrader v. Kohout, 239 Ga. App. 134, 522 S.E.2d 19 (1999); Hill, 186 Mich. App. 300; Flynn v. Bausch, 469 N.W.2d 125 (Neb. 1991); St. John, 901 S.W.2d 420; 1 Louisell & Williams, Medical Malpractice § 8.03 at 8-19, 8-20 (Matthew Bender 2001).
We conclude that Gilmartin was under no legal duty to go to the hospital on November 14,1995; thus, his failure to do so cannot constitute a breach of duty to support a claim of negligence.
III. DR. RADETSKY’S TESTIMONY
Irvin argues that the district court erred in allowing Dr. Michael Radetsky, a pediatric intensivist, to testify that Smith did not violate the standard of care because Radetsky’s testimony was outside the scope of Smith’s expert designation and because Radetsky had refused to answer specific questions regarding the existence of such opinion during his discovery deposition.
The admission of expert testimony lies within the sound discretion of the trial court. Its decision will not be overturned absent an abuse of such discretion. Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996). One who asserts an abuse of discretion bears the burden of showing such abuse. State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 (1999).
Irvin argues that Smith was required to disclose Radetsky’s opinions and the summary of the grounds for his opinions pursuant to K.S.A. 2000 Supp. 60-226(b)(6)(B). Because Smith failed to provide a report in which Radetsky offered his opinions regarding the standard of care of Smith, Irvin argues that his testimony should not have been admitted.
Radetsky was initially retained as an expert by Wesley to testify regarding the standard of nursing care provided to Irvin. After Wesley was dismissed, Smith asked Radetsky to testify in the second Sedgwick County trial.
At the time of Radetsky’s discovery deposition, his counsel stated: “He’s not going to express any opinions at trial concerning the physicians in this case.” When counsel for Irvin attempted to elicit Radetsky’s opinions concerning the care of Smith, Radetsky’s counsel reiterated: “He will not render any testimony whatsoever concerning the standard of care issues concerning any of the physicians involved with this case, -either Wesley or anywhere else, period.” Smith’s counsel also joined with Radetsky’s counsel, stating: “Dr. Radetsky did not render a report as to Dr. Smith .... But as I understand what Mr. North said . . . the witness is not being offered on those subject matters beyond the scope of the report.” Irvin’s counsel persisted and asked: “Okay, Dr. Radetsky, what opinions do you have concerning the care rendered by Dr. Smith?” Radetsky’s counsel again objected, stating: “No. Objection. It’s beyond the scope of his expert report. He’s not going to be offered as a witness at trial so he’s not going to answer the question.” Radetsky did not answer the question during the deposition.
During the course of the trial, Smith offered the testimony of two “standard of care” witnesses, Dr. George Reynolds and Radetsky. Reynolds had been designated and deposed as a standard of care expert for Smith. As previously noted, Radetsky initially had been designated and deposed as an expert witness whose opinions related to the nursing care provided by Wesley.
Early in the trial, Smith informed Irvin of his witness schedule, which included Radetsky. Irvin objected to the use of Radetsky as a standard of care witness several times. Smith informed the court that Radetsky would essentially provide the same testimony that he provided in the March 1999 trial, but that Radetsky would not be asked to comment on Smith’s standard of care.
At trial, Radetsky testified via videotaped deposition. Radetsky testified that records and testimony showed nothing to indicate a shunt malfunction prior to 8:45 a.m. on November 15,1995. Both Irvin and Smith filed designations of Radetsky’s testimony. Irvin objected to the introduction of Radetsky’s videotaped trial deposition. The district judge overruled the objection, stating:
“This witness testified at the last trial, he’s testified again at videotaped deposition on areas that I’m pretty confident are basically the areas that you covered the first time you had this trial. More importantly, he was listed as a witness by Doctor Smith in the pretrial order. I think that his testimony should be allowed in this case.”
Irvin cannot claim surprise or prejudice by the district court’s decision to allow Radetsky to testify in this matter.
Contrary to Irvin’s assertions, Smith designated Radetsky as an expert in the pretrial order when he set forth and identified any “expert witnesses named by other defendants” in his witness list. Because Wesley had originally named Radetsky as an expert witness, Smith was able to call him as an expert in the second trial as the district court had previously ruled that witnesses listed by one party could be called by any other party.
Radetsky was questioned at length by Irvin during the discovery deposition on matters relating to the standard of care of Irvin; although the questions did not specifically mention or refer to Smith, they, nonetheless, shed light on Radetsky’s opinions regarding the care provided to Irvin.
A thorough examination of the voluminous record reveals that Radetsky’s testimony in the videotaped deposition taken during the second trial roughly mirrors that of the discovery deposition Radetsky gave prior to the first trial and is also similar to the testimony Radetsky provided at the first Sedgwick County trial. Furthermore, Radetsky’s testimony at the second trial was consistent with the content of his report made for Wesley.
We cannot say the district court abused its discretion in allowing Radetsky to testify regarding Smith’s standard of care.
IV. PURCHASE OF ANNUITY
Irvin next argues that the district court erred in allowing Smith to present testimony regarding the hypothetical purchase of an annuity as a way to convert future damages into present value. Irvin specifically argues that the annuity evidence is violative of the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that evidence of the purchase of a hypothetical annuity violates public policy.
Because the juiy found that Smith was not liable for Irvin’s damages as he did not breach his duty of care, the issue of damages is moot. Irvin alleges, however, that the jury’s perception of Irvin’s credibility hinged on the damage testimony. Irvin originally claimed over $20 million dollars in damages. The court allowed testimony through the insurance agents who estimated that $20 million in damages could be covered by the purchase of a $3 million annuity. The reduction from the amount originally requested to a fraction of the original amount, Irvin argues, prejudiced the outcome of the trial by tipping the scales towards finding that Smith committed no breach of duty. Irvin does not provide any evidence indicating that the presentation of the annuity evidence had an adverse effect other than conjecture and suspicion. Irvin’s argument is untenable and without support. The issue is moot.
V. EXHIBIT 56 (DAMAGES FOR FUTURE INSTITUTIONAL CARE)
Irvin argues that the district court erred when it reversed its prior ruling on the foundation of Exhibit 56 by amending Irvin’s request for damages for future institutional care.
As with the previous issue, any question regarding the admission of damage evidence was rendered moot when the jury returned a verdict finding that Smith had not breached his duty of care toward Irvin. Irvin has not shown how the claimed error affected the outcome of the liability portion of the trial. Having shown no prejudice, any error must be “harmless.”
VI. ORDERING IRVIN TO APPEAR AT VOIR DIRE
Irvin argues that the district court erred in ordering Irvin to appear at voir dire and precluding her from appearing during any other portion of her trial if she did not appear during voir dire.
This same issue arose when the case was first tried in March 1999 in Sedgwick County. Irvin was subpoenaed by Smith to appear in person on the first day of trial during jury selection. Although Irvin moved to quash the subpoena, the district court ordered her to appear in person, which she did.
Prior to the second Sedgwick County trial, Smith caused a subpoena to be issued to Irvin directing her appearance during the voir dire of the jury pursuant to K.S.A. 2000 Supp. 60-245. K.S.A. 2000 Supp. 60-245(a)(l)(C) sets forth that: “[Every subpoena shall] command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books . . . in the possession . . . of that person . . .
Irvin and her family moved to quash the subpoena claiming, among other things, lack of statutory subpoena power and undue hardship to Irvin. The district court ordered the Irvin family to produce Irvin in the courtroom during voir dire. The district court ruled that if Irvin was not produced at voir dire, she would be barred from the courtroom throughout the trial. Irvin did not appear in person during her trial.
Irvin argues again on appeal that Smith did not have the authority to issue a subpoena compelling her to appear at voir dire because “she is not capable of giving testimony nor is she capable of possessing documents.”
Smith wanted Irvin present at voir dire so that the potential jury members could assess their feelings of her and so that counsel would have the opportunity to assess whether particular jurors would be able to make a fair and just decision given Irvin’s physical condition. The purpose of voir dire is to select jurors who are without bias, prejudice or partiality. State v. Aikins, 261 Kan. 346, 365, 932 P.2d 408 (1997); State v. Hayes, 258 Kan. 629, 631, 908 P.2d 597 (1995). The nature, scope, and manner of the voir dire examination lie within the sound discretion of the trial court. State v. Jorrick, 269 Kan. 72, 77, 4 P.3d 610 (2000); State v. Shannon, 258 Kan. 425, 433, 905 P.2d 649 (1995). The trial court has a duty to see that the jury is comprised of fair and impartial persons. State v. Stuart, 206 Kan. 11, 12, 476 P.2d 975 (1970).
We cannot say the district court abused its discretion in ordering Irvin to be present at voir dire.
VII. NEW TRIAL
Irvin argues that the district court erred in refusing to grant the motion for a new trial because the verdict was contrary to the evidence.
When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of an appellate court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 361-62, 837 P.2d 330 (1992); Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).
Following the verdict, Irvin filed a motion for a new trial. The district court denied the motion. Irvin argues that the verdict finding that Smith had not breached his duty was contrary to the evidence because the evidence shows that Smith did not remember whether he had looked at Irvin’s x-rays on November 14. The testimony also shows, Irvin argues, that Smith should have looked at Irvin’s x-rays and that Smith admits that if he would have looked at them he would have concluded that the shunt was imbedded in the abdominal cavity.
Smith argues, on the other hand, that there was ample evidence to support the jury verdict. Dr. George Reynolds testified for Smith concerning the standard of care. Reynolds testified that Smith did not depart from the standard of care, stating:
“My opinion is that Doctor Smith acted appropriately and that the care he gave Ashley was within the standard of care.
"... I was asked to look at what Doctor Smith did based on the information he had available. I don’t think there’s any question that he got bad information. He was told that she — that her shunt had been cleared by her neurosurgeon, that they had done an appropriate workup and it was negative. He had been told that a shunt series was in progress and that he would know if it was — if there is any abnormality. So he had reason-to believe he was going to be notified. He knew the . . . MM ... at St. Catherine’s was normal; not once but twice. There’s no acute process, there’s no evidence of increased intracranial pressure is what we can reasonably infer from that. Given the bad information he had, he did the best he could with the information available to him. I think he acted appropriately.”
When questioned by Irvin’s counsel, Reynolds again reiterated that he believed Smith did not breach his duty to Irvin. During cross-examination, the following took place:
“Q. You believe that the standard applied to Doctor Smith is drat Doctor Smith is not at fault in Ashley’s injury?
“A. I believe — applying die standards as I understand diem, diat’s die conclusion I reach, yes.”
When further questioned, Reynolds further maintained that Smith did not depart from the appropriate standard of care.
“Q. You disagree — I say that Doctor Smith’s negligence caused or contributed to cause Ashley’s injury.
“A. I absolutely disagree widi that.”
Furthermore, the jury heard testimony that Smith knew that Irvin’s shunt had been cleared by her neurosurgeon in Kansas City 3 weeks earlier. Irvin appeared to be ill and did not present symptoms of shunt malfunction. MacGee reported that Irvin’s shunt was fine 3 days prior to her arrival at Wesley. Irvin’s MRI from St. Catherine’s showed no increased intracranial pressure. There was also testimony indicating that Gilmartin believed that the shuntogram could be done the next day as Irvin was in stable condition on the night of November 14.
The jury was also presented with other evidence to suggest that there were others who contributed to Irvin’s injury. The jurors watched the videotaped deposition of MacGee where he stated that a radiologist had told him the tubing was fine, but he could not remember who the radiologist was. Divelbiss admitted that her readings of the x-rays were incorrect. Irvin furthermore stipulated that Divelbiss and MacGee were partially at fault.
It is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. The evidence, when considered in the light most favorable to Smith, supports the verdict and will not be disturbed on appeal.
Both of the cross-appeal issues are moot by virtue of the above decision.
Affirmed. | [
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The opinion of the court was delivered by
Larson, J.:
Terry Lee Gilbert was convicted by a jury of first-degree felony murder, K.S.A. 21-3401(b), aggravated robbery, K.S.A. 21-3427, aggravated burglary, K.S.A. 21-3716, and criminal damage to property, K.S.A. 21-3720. His appeal challenges statements made after a claimed invocation of right to counsel, refusal to allow cross-examination of a witness as to the reputation of the victim, claimed failure to be provided with a copy of exhibits admitted in evidence, and the trial court’s failure to instruct on lesser included offenses of felony murder. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(l) (imposition of maximum sentence of life imprisonment).
This is a companion case to State v. Branning, 271 Kan. 877, 26 P.3d 673 (2000), and while the issues on appeal differ somewhat, the facts of the underlying crimes are the same.
On September 16,1998, Jarold (Jerry) Johnson was found dead in his residence in Salina, Kansas.
While officers investigating the crime were interviewing Margaret Kelso, a potential witness, Terry Gilbert arrived at her home. Kelso had told the officers that Gilbert was potentially involved in the death of Johnson. The officers asked Gilbert if he would talk to them. Gilbert initially agreed, but after being asked to go to the police station he stated that he would not talk without his attorney. When asked if he had an attorney, Gilbert replied he did not.
One of the officers contacted his supervisor, and Gilbert was arrested for the murder of Johnson. While being transported to the police station,, Gilbert initiated a conversation with the officers but was told that they could not answer any of his questions because he had already requested an attorney and any conversation might lead to an incriminating response. Gilbert stated, ‘Well, I’ll talk with you either way. I’ll say the same thing either with an attorney there or not. I just said that I wanted an attorney because I don’t want to go to jail because that’s what Louis Brouillard did.” Gilbert then claimed he was willing to talk because he did not commit the crime. One of the officers told Gilbert that he needed to wait until they were at the police department before they could discuss the matter further.
After obtaining prehminary information from Gilbert, the investigators read him his Miranda rights. Gilbert placed his initials next to each right, signifying that he understood them. He also signed and dated the Miranda form. One of the investigators requested that Gilbert write out in his own words that it was his desire to make contact with and speak to the police. Gilbert wrote on the waiver form: “I am willing to be questioned by detectives without [an] attorney present at this time” and again signed his name underneath.
In the interview that followed, Gilbert eventually admitted to being involved in the killing of Johnson. He claimed that Johnson owed him $25 and he decided to attempt to collect it one evening when he needed money for beer. He had Louis Brouillard drive him over to Johnson’s house. By himself, Gilbert said he approached the home and knocked on the door. Johnson answered, but refused to talk to him and slammed the door in his face. Gilbert then kicked open the door and confronted Johnson. Gilbert claimed he pushed Johnson, and Johnson fell and hit his head on the coffee table. Johnson began making strange breathing noises. Gilbert became scared and left, claiming he took nothing from the residence.
The officers later videotaped a second interview with Gilbert where the same story was repeated. The officers asked Gilbert if he would write a note to Brouillard advising him to be truthful because he had already confessed. In compliance, Gilbert wrote a note stating: “Louis they know I did it don’t fie to protect me. Terry.”
One additional interview was held with Gilbert after he signed an additional waiver of rights, but then he said he wanted an attorney appointed. Before the officers could say anything further, Gilbert stated, “Can I tell you one thing? Someone did go back into the house.” He then said it was not himself or Brouillard. When asked if it was Garret Harris or Ronald Branning, Gilbert responded “no.” Gilbert also stated multiple times that he had bought two cartons of Marlboro cigarettes for $10. There were no further interviews or statements.
Prior to trial, Gilbert moved to suppress statements made in all of his interviews. A hearing was held and the motion was deified.
At trial, Garret Harris testified on behalf of the State pursuant to a plea bargain. He stated that several individuals went over to Johnson’s house and that prior to entering the home they all placed socks over their hands. Gilbert broke down the door and Gilbert, along with Brouillard, severely beat Johnson. Harris further testified that they ransacked the house, stealing both money and cartons of cigarettes.
Gilbert testified in his own defense. His version was substantially the same as that given to the officers during his initial interview. Gilbert was found guilty by the jury of felony murder, aggravated robbery, aggravated burglary, and criminal damage to property. Additional facts will be discussed as they relate to particular issues.
Motion to suppress
Gilbert first contends the trial court erred in failing to suppress his statements made during his interviews with the police. He alleges that the three interviews were in fact one continuous interview and the failure to honor his initial request for an attorney was a violation of his Sixth Amendment right to counsel.
The first consideration is the State’s contention that Gilbert did not properly preserve this issue for appeal because no contemporaneous objections were made at the time his statements were offered into evidence. We have consistently held that “[wjhen a pretrial motion to suppress has been denied, the moving party must object to introduction of the evidence at trial in order to preserve the issue for appeal.” State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999).
The only objection made was to the introduction of the videotape from the second interview which was lodged after the unrecorded interview was thoroughly discussed. Proper objections must be timely and specific in order to preserve an issue for appeal. State v. Sims, 265 Kan. 166, 174-75, 960 P.2d 1271 (1998).
While Gilbert might argue that his single objection is sufficient to preserve this issue, his arguments likewise fail when considered on the merits. Gilbert volunteered his side of the story and made many of the statements even after the officers told him that he should not do so. Although he later contended he was impaired when arrested, there was no showing of intoxication when arrested or during subsequent interviews. The trial court properly found Gilbert’s testimony of his condition was not credible. The motion to suppress was properly denied, and the testimony in the main was admitted without objection.
Cross-examination on reputation of victim
Gilbert again cites the Sixth Amendment in contending the trial court violated his right to a fair trial by refusing to allow him to delve into the character of the victim. He contends that showing the victim’s dishonest character would have bolstered his defense that he was at the victim’s house only to collect unpaid wages.
In actuality, Gilbert’s claim that Johnson owed him money was not in dispute. The only question was whether Gilbert broke into the victim’s house with the intent to commit robbery. Whether he believed he was lawfully owed money is irrelevant.
We have held that “[t]he taking of money by force or intimidation, even for the purpose of applying it to the payment of an alleged debt” is not a defense to robbery or theft. State v. Russell, 217 Kan. 481, 484, 536 P.2d 1392 (1975). The trial court was within its discretion in refusing to allow the victim’s reputation to become an issue in the trial. This contention is without merit.
Examination of exhibits
Gilbert next argues that he should have been granted a mistrial under K.S.A. 22-3423, because he was not provided with two photographs of Brouillard’s truck and a photocopy of a picture of money spread out on a table that was found during a search of Brouillard’s residence. All three photos were admitted into evidence. At trial, he argued under State v. Adam, 257 Kan. 693, 896 P.2d 1022 (1995), that the failure of the State to furnish him with copies of these exhibits was prejudicial error.
The State contends its files and all exhibits were open to the defense for examination. It called the officer in charge of handling all the evidence in the case. The officer testified that all the State’s evidence was made available to the defense investigator when he requested it. The defense counsel agreed on the record at the time of trial that the State’s open file system existed, and the prosecutor had complied with the ongoing discovery request.
It is clear that the exhibits about which Gilbert complains were available to him. Counsel failed below to show any violation of Gilbert’s rights or to articulate any prejudice to Gilbert. He again fails to do so on the appeal. Having not articulated any prejudice, this argument must fail.
Lesser included offense instructions
Gilbert finally argues that he was prejudiced by the trial court’s failure to give lesser included offense instructions for felony mur der. He contends that because of this error, the jury was confused and unable to consider a lesser charge. In actuality, Gilbert was charged with first-degree murder on both theories of premeditated murder and felony murder. The complained of instruction referred only to “first-degree murder” which could be construed to include both theories, but we will consider this issue as raised by Gilbert’s brief on appeal.
Gilbert is incorrect to cite and rely upon the second prong of the test announced in State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), which has been overruled by an amendment to K.S.A. 21-3107 effective July 1, 1998. See K.S.A. 2000 Supp. 21-3107; State v. Hunt, 270 Kan. 203, 211, 14 P.3d 430 (2000) (“The second prong of the Fike test was eliminated in 1998 by an amendment to K.S.A. 21-3107.”) The crimes for which Gilbert was charged and convicted occurred in September 1998, making the second prong of Fike inapplicable. Gilbert’s citation to Fike and its subsequent progeny of case law need not be given any further consideration.
The appropriate standard for reviewing whether the jury should be instructed on lesser included offenses for felony murder was recently stated in the appeal of Gilbert’s codefendant:
“ “When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to die elements of deliberation and premeditation which are odierwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required. [Citation omitted.]’ ” (Emphasis added.) Branning, 271 Kan. at 887 (quoting State v. Strauch, 239 Kan. 203, 218, 718 P.2d 613 [1986]).
The underlying felonies for which Gilbert was charged and convicted were aggravated burglary and aggravated robbery. The evidence concerning the elements of both crimes was strong and convincing.
Gilbert’s testimony that his conduct was justified by attempting to collect a $25 debt is not convincing. His excuse for his actions is unavailing and the testimony clearly shows the following: Johnson’s door was forcibly kicked open, Gilbert admitted he broke into the home and shoved the victim, and Johnson was assaulted and cigarettes and money were taken from his home. The evidence of the underlying felonies is not weak, inconclusive, or conflicting. Gilbert’s argument that the lesser included offenses for felony murder should have been instructed upon is without merit.
Affirmed. | [
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The opinion of the court was delivered by
Abbott, }.:
This is a direct appeal by the defendant, Barry A. Cody, from his sentence after pleading guilty to drug possession charges. In 1999, Cody pled guilty and was sentenced to a controlling term of 72 months’ imprisonment. The sentence twice exceeded Cody’s base sentence and was therefore illegal. The mistake was caught by the Department of Corrections, which notified the trial court. The trial court notified the parties that in correcting the illegal sentence it intended to impose an upward durational departure. At the resentencing hearing, the trial court made a durational departure and ordered that Cody serve a controlling sentence of 64 months, doubling the presumptive sentence for the primary offense.
The controlling issue before this court involves Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
The Court of Appeals upheld the sentencing court’s decision, holding that Apprendi did not apply because the primary facts upon which Cody’s upward departure sentence was based were proven beyond a reasonable doubt by Cody’s admissions and pleas of guilty. State v. Cody, 27 Kan. App. 2d 1037, 1038-39, 10 P.3d 789 (2000).
This court granted review and issued an order to show cause why State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), is not controlling.
This case presents the issue of whether the district court’s imposition of an upward departure sentence was unconstitutional when Cody pled guilty to criminal charges and the court based its sentence upon Cody’s admissions, not upon facts found beyond a reasonable doubt by a jury. The State argues that “the primary facts upon which the departure was based were proven beyond a reasonable doubt by the defendant’s admissions and pleas of guilty to various charges.” Cody contends, however, that under Apprendi, a plea of guilty to the elements of a criminal offense does not constitute either an admission or a waiver of his due process rights. Cody asserts that “the fact that he admitted each of the elements of the offenses is in no way an admission that the sentencing factors used to increase his sentence were proved beyond a reasonable doubt.” We agree. See Apprendi, 530 U.S. at 476-77, 490; State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001).
The record of the sentencing hearing fails to reveal the precise statute the court relied upon for authority in its upward departure. Both the State and Cody note that K.S.A. 21-4717 lists aggravating factors which may be considered by a court in drug crimes in determining whether to depart. However, it is K.S.A. 2000 Supp. 21- 4716(a) that contains the legislature’s grant of authority to allow a sentencing judge to depart from the presumptive sentence. Thus, K.S.A. 2000 Supp. 21-4716 is implicated here. “Interpretation of a statute is a question of law, and our review is unlimited.” Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 654, 16 P.3d 962 (2001).
In Gould, this court held that K.S.A. 2000 Supp. 21-4716 relating to imposing upward departure sentences was unconstitutional on its face. 271 Kan. 394, Syl. ¶ 3. Where an act of the legislature or a portion thereof is clearly unconstitutional, it is the duty of the courts to so declare and to hold the unconstitutional provision or provisions null and void. State v. Barrett, 27 Kan. 213, Syl. ¶ 2, (1882). Therefore, we reverse the sentence imposed by the court under K.S.A. 2000 Supp. 21-4716 and remand for resentencing per Gould.
Reversed and remanded for resentencing. | [
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The opinion of the court was delivered by
McFarland, C.J.:
Susan K. Brown was convicted in a bench trial on stipulated facts of one count of payment for adoption in violation of K.S.A. 59-2121(a), a severity level 9 person felony, and one count of prohibited offers and placement of children for adoption in violation of K.S.A. 59-2123, a class C misdemeanor. Defendant was sentenced to two consecutive 12-month terms of probation and appeals from her convictions. In her brief, defendant states the issue as being: “The issue in this case is whether the district court correctly interpreted the provisions of K.S.A. 59-2121, and K.S.A. 59-2123, based upon the stipulated facts of the case to find the defendant, Susan K. Brown, guilty of violating each statute’s respective criminal provisions?”
The above statement of the issue and the brief s concluding paragraph requesting that the conviction of the misdemeanor be reversed are the only references in the brief to the defendant’s conviction of a violation of K.S.A. 59-2123. An issue which is not briefed is deemed abandoned. State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999). Accordingly, we limit our consideration to whether the stipulated facts support defendant’s conviction of a violation of K.S.A. 59-2121(a).
FACTS
Extensive stipulations of fact were entered into by the parties. There was no other evidence admitted. The basic issue is whether these stipulated facts establish a violation of K.S.A. 59-2121. This is essentially a matter of statutory interpretation, as there is no significant conflict within the stipulated facts. Given the very narrow issue before us, it is appropriate to highly summarize the stipulated facts.
Defendant operated an escort service named “Blaze” out of her home in Wichita. Upon hearing that a former employee, Samantha Pruitt, had given birth to a child in Oklahoma and was considering putting the child up for adoption, defendant told her to wait. Defendant then went to Oklahoma and brought the mother and child to her home.
Defendant made arrangements for another employee (Teresa Lawrence) and Tina Black to acquire the child from Pruitt in exchange for a new car, $800, and a cell phone. Defendant was to receive half of the cash as compensation for her part in putting the deal together. The transfer of the child took place, but none of the agreed-upon compensation was paid or delivered. Pruitt became dissatisfied with the delay and complained to a friend who happened to be the girlfriend of a police officer.
Ultimately, Pruitt and the police officer reported the incident. In cooperation with the Wichita Police Department, Pruitt made a monitored telephone call to the defendant, wherein the following was said:
“Pruitt: So uh . . . what happened to the money that I was supposed to get and the car and cell phone. What did they ....
“Brown: Hey, you can get all that when you get the fucking uh . . . uh . . . birth certificate.
“Pruitt: . . . did they just . . . but what about you . . . your half of the money, did they give it all to you?
“Brown: Not yet they haven’t. They’re waiting for the birth certificate. I get to wait just like you get to wait.
“Pruitt: Yeah.
“Brown: You know, you produce what you’re suppose and everything will go cool. All you have to go over you fucking . . . boyfriend’s house and get it out of the garage ... he has to wait 21 days . . . that’s bullshit.”
The conversation then disintegrated into name calling.
It was further stipulated: "None of the money was intended for any bill or expense incidental to birth or adoption proceedings.” Ultimately, the child was found and taken into protective custody.
STANDARD OF REVIEW
Our case law, as generally applied in civil cases, states that appellate courts have de novo review of cases decided on the basis of documents and stipulated facts. Heiman v. Parrish, 262 Kan. 926, 927, 942 P.2d 631 (1997); Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987).
A substantial competent evidence standard of review is used in cases with stipulated facts when the record includes conflicting testimony or when the case involves oral testimony that is conflicting. In re Adoption of Baby Boy B., 254 Kan. 454, 456-60, 866 P.2d 1029 (1994); Bell v. Tilton, 234 Kan. 461, 467-68, 674 P.2d 468 (1983).
Interpretation of a statute is a question of law, and this court’s review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
Our review herein is unlimited.
THE STATUTE
K.S.A. 59-2121 provides:
“(a) Except as otherwise authorized by law, no person shall request, receive, give or offer to give any consideration in connection with an adoption, or a placement for adoption, other than:
(1) Reasonable fees for legal and other professional services rendered in connection with the placement or adoption not to exceed customary fees for similar services by professionals of equivalent experience and reputation where the services are performed, except that fees for legal and other professional services as provided in this section performed outside the state shall not exceed customary fees for similar services when performed in the state of Kansas;
(2) reasonable fees in the state of Kansas of a licensed child-placing agency;
(3) actual and necessary expenses, based on expenses in the state of Kansas, incident to placement or to the adoption proceeding;
(4) actual medical expenses of the mother attributable to pregnancy and birth;
(5) actual medical expenses of the child; and
(6) reasonable living expenses of tire mother which are incurred during or as a result of the pregnancy.
“(b) In an action for adoption, a detailed accounting of all consideration given, or to be given, and all disbursements made, or to be made, in connection with the adoption and the placements for adoption shall accompany the petition for adoption. Upon review of the accounting, the court shall disapprove any such consideration which the court determines to be unreasonable or in violation of tliis section and, to the extent necessary to comply with the provisions of this section, shall order reimbursement of any consideration already given in violation of this section.
“(c) Knowingly and intentionally receiving or accepting clearly excessive fees or expenses in violation of subsection (a) shall be a severity level 9, nonperson felony. Knowingly failing to list all consideration or disbursements as required by subsection (b) shall be a class B nonperson misdemeanor.”
RULES OF STATUTORY CONSTRUCTION
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory 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. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. The court must give effect to the legislature’s intent even though words, phrases, or clauses at some place in the statute must be omitted or inserted. State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
Criminal 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. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
Defendant contends the stipulated facts do not support her conviction herein as they do not establish that she was guilty of knowingly and intentionally “receiving or accepting clearly excessive fees or expenses in violation of subsection (a),” as required by K.S.A. 59-2121(c).
DISCUSSION
At this point, it is appropriate to discuss the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., of which K.S.A. 59-2121, the statute before us, is a part. The Act was revised extensively in 1990.
The pertinent portions of K.S.A. 59-2121 address payment involved in adoptions, limitations thereon, and the criminal penalties for violation of such limitations. Specifically, K.S.A. 59-2121(a) states, in part: “[N]o person shall request, receive, give or offer to give any consideration in connection with an adoption, or a placement for adoption.” The subsection then proceeds to fist the exceptions to this prohibition, allowing for reasonable fees for agencies and professionals, actual and necessary expenses incident to placement or proceedings, actual medical expenses of the mother and child, and reasonable living expenses of the mother incurred during or as a result of the pregnancy. Then, K.S.A. 59-2121(b) requires that a detailed accounting be given to the court at the time the petition for adoption is filed. Finally, K.S.A. 59-2121(c) states the criminal penalties:
“Knowingly and intentionally receiving or accepting clearly excessive fees or expenses in violation of subsection (a) shall be a severity level 9, nonperson felony. Knowingly failing to list all consideration or disbursements as required by subsection (b) shall be a class B nonperson misdemeanor.”
Here, it is undisputed that none of the exceptions set out in K.S.A. 59-2121(a) apply. Defendant was convicted of “[kjnowingly and intentionally receiving or accepting clearly excessive fees or expenses in violation of subsection (a).”
The statutory predecessor to K.S.A. 59-2121 was K.S.A. 1988 Supp. 59-2278c, which did not provide a penalty section (c). Apart from this penalty section, when K.S.A. 59-2278c was repealed and replaced by K.S.A. 59-2121, the statutory changes concerned how reasonable fees should be determined, e.g., they “shall not exceed customary fees for similar services when performed in the State of Kansas.” K.S.A. 59-2121(a)(l). Thus, for purposes of this appeal, the penalty section is the only relevant change made in 1990.
The Judicial Council Family Law Committee comments to the Kansas Adoption and Relinquishment Act discuss the 1990 changes. The committee’s comments relevant to this statute are quoted below; in brackets are the comments added at a later time by an interim legislative committee.
‘This section [K.S.A. 59-2121] closely follows K.S.A. 59-2278c. The phrase ‘. . . not to exceed customary fees in the locality for similar services by professionals of equivalent experience and reputation . . .' has been added in (a)(1). This is intended to discourage the marketing of children by limiting die profitability of such activity. Also, diere are terminology changes from die present statute to clarify that this section applies to all adoptions.
“[In regard to subsection (a)(1), the Interim Committee at the request of die Family Law Committee provided that fees for legal and other professional services would be evaluated by the court in terms of what is customaiy ‘where the services are performed.’ The Senate Committee amended die provision so that such fees shall be evaluated in terms of what is reasonable ‘in the county of venue.’ This approach was extended by the Senate Committee to subsections (a)(2) and (3). At a minimum, it appears inconsistent to have both phrases ‘in the county of venue’ and ‘where the services are performed’ in (a)(1). The Family Law Committee concluded that if legitimate, valuable services are performed out-of-state in connection with an adoption, it does not seem objectionable for the court to review such fees in terms of what is customary where the services are performed. To disallow such fees solely because they are beyond what is customary in the county of venue in Kansas would certainly inhibit certain nonresidents from being able to adopt in Kansas. We suspect that the underlying concern motivating the recommendation for the limiting provisions relates to the inability of the Kansas court to enforce its determinations in regard to fees which are clearly excessive or of questionable legitimacy. The addition of subsection (c) by the Senate Committee would appear to directly address this issue of enforcement.]”
It is clear that the legislature intended to discourage “the marketing of children by limiting the profitability of such activity” and to provide penalties for fees which are “of questionable legitimacy.” Further, in 1 Kansas Law and Practice: Kansas Family Law § 6.14, p. 315 (1999), Professor Linda Elrod and Judge James Buchele offer this insight into independent adoptions and the “baby broker”:
“The extent of regulation of independent adoptions varies in those other states which allow them. A few states have no legislative restrictions. Some will not process an adoption if the child is found through an ‘intermediary or ‘baby broker’ not licensed as an adoption agency. Some limit the amount of money that can be obtained by those involved in placing a child for adoption. Other states, in addition to limiting fees, require extensive background investigations of all adoptive parents. All states find that selling a human being, especially a child, violates public policy. Additionally, engaging in adoptions for profit fails to take into consideration the best interests standard that applies in placing children generally. The highest bidder rather than the ‘best home’ gets the child.”
The Kansas Court of Appeals interpreted K.S.A. 59-2121 in State v. Clark, 16 Kan. App. 2d 552, 826 P.2d 925, rev. denied 250 Kan. 806 (1992). Although the question there was whether the statute was unconstitutionally vague, the case has considerable significance to the issue before us. Clark was convicted on one count of knowingly and intentionally receiving unauthorized consideration in connection with an adoption in violation of K.S.A. 1991 Supp. 59-2121. (NOTE: The statutory language in 1991 is the same as the current language. The only amendment between then and now was to change the penalty to conform with the Kansas Sentencing Guidelines grid.) The facts were stipulated to by the parties. Clark received a cash payment of $5,000 as consideration for his consent to the adoption of his baby. He admitted that the money was not to be used to pay any bill or expense incidental to the birth of the child or the adoption proceedings. He intended to use the $5,000 to pay some old bills, including some bad checks, traffic fines, and a phone bill, and to buy a car. 16 Kan. App. 2d at 552.
Clark first argued that the evidence was not sufficient to support the trial court’s finding that he was guilty of the crime of receiving unauthorized consideration in connection with an adoption for the reason that the State had failed to prove that he had failed to report all consideration received or that he had failed to return any unauthorized payment following a judicial determination that the consideration was unauthorized. The Court of Appeals found no merit to this argument. The Clark court held that K.S.A. 59-2121(a) and (b) create separate crimes and that failure to report or reimburse any consideration given or received is not an element of the crime of intentionally and knowingly receiving or accepting clearly excessive fees or expenses in connection with an adoption under subsection (a). 16 Kan. App. 2d at 553.
Clark then argued that K.S.A. 59-2121 is unconstitutionally vague, pointing out that 59-2121(c) outlaws the receipt of unauthorized consideration in connection with an adoption only when the consideration is “clearly excessive.” Clark argued that the “clearly excessive” standard was unconstitutionally vague. The Clark court also rejected this argument. In an opinion authored by retired Chief Justice David Prager, the panel reasoned:
“We find this contention to be without merit. K.S.A. 1991 Supp. 59-2121(c) makes it unlawful to intentionally and knowingly receive or accept clearly excessive fees or expenses ‘in violation of subsection (a).’ Subsection (a) makes all receipt of consideration in connection with an adoption or placement for adoption illegal with six exceptions.
“It is clear that it was the legislative intent that all fees, expenses, or other consideration received not meeting one of the six exceptions provided are ‘clearly excessive’ and a violation of 59-2121(c) where the excessive fees or expenses are received or accepted knowingly or intentionally.
“Where die defendant requests or receives compensation for ‘fees or expenses’ which falls within one of the six exceptions, the defendant may still be guilty of violating the statute where the amount requested or received is not reasonable, actual, or necessary and the defendant acts knowingly and intentionally.
“The class B misdemeanor which arises when a defendant knowingly fails to list all consideration or disbursements in an accounting as required by subsection (b) is an entirely separate crime.
“The statute involved here is not unconstitutionally vague. It gives fair warning to those persons potentially subject to it and adequately guards against arbitrary and discriminatory enforcement. State ex rel. Mays v. Ridenhour, 248 Kan. 919, 943, 811 P.2d 1220 (1991).
“In this case, the defendant did not contend that his conduct came within any of the six statutory exceptions. In his statements to the police, defendant clearly acknowledged that the $5,000 he requested and received was not for the purpose of paying any fees or expenses incidental to the birth of the child or the adoption proceedings. He indicated he was aware that his conduct was unlawful. His acts were committed knowingly and intentionally.” 16 Kan. App. 2d at 554.
Clark’s conviction was affirmed. We denied review.
Defendant draws our attention to the fact that in K.S.A. 59-2121(a) the prohibited conduct is that “no person shall request, receive, give or offer to give any consideration in connection with an adoption,” followed by six exceptions thereto. However, subsection (c) speaks only of “[kjnowingly and intentionally receiving or accepting clearly excessive fees.” Thus, she argues, the legislature has only criminalized the prohibited conduct of receiving or accepting such fees. From there she contends that as she did not actually receive or accept the agreed upon fee, she did not violate K.S.A. 59-2121(c). Defendant treats “accepting” and “receiving” as being synonymous. We disagree. “Receive” is listed in subsection (a), but “accept” is not. One must conclude that the legislature intended to criminalize more than “receiving” excessive fees by adding “accepting.” Otherwise “accepting” would be a redundant term pulled from the air rather than subsection (a).
Clark is helpful in addressing Brown’s arguments because it explores the interplay between the various subsections of K.S.A. 59-2121. The facts of Clark are somewhat distinguishable from the case at hand because there the father actually received $5,000 in exchange for his consent to the adoption of his baby. In the case before us, defendant brokered the transfer of Pruitt’s child for a fee. Like Clark, a child changed hands as a part of a deal involving consideration which was wholly unrelated to any of the exceptions listed in subsection (a). It is interesting that the example given in Clark states:
“Where the defendant requests or receives compensation for ‘fees or expenses’ which falls within one of the six exceptions, the defendant may still be guilty of violating the statute where the amount requested or received is not reasonable, actual, or necessary and the defendant acts knowingly and intentionally.” (Emphasis supplied.) 16 Kan. App. 2d at 554.
As previously stated, the purpose of K.S.A. 59-2121 is to discourage the marketing of children by limiting the profitability of such activity. The welfare of children lies at the heart of the legislation. The fact that defendant had not yet received the money she bargained for in brokering the child when law enforcement officials stepped in does not change the nature of the transaction. The child had changed hands pursuant to the deal defendant brokered. Defendant sold Pruitt’s child, much like the father sold his in Clark.
Defendant brokered a deal for the sale of the child. The deal was a three-way transaction. Buyers received the child in exchange for promised compensation to the child’s mother and to defendant as the broker of the deal. Defendant requested a fee for her services in putting the deal together. Buyers, seller, and broker accepted the terms thereof and the child was transferred under the agreed-upon terms.
We conclude such conduct constituted “[kjnowingly and intentionally receiving or accepting clearly excessive fees or expenses in violation of subsection (a),” as set forth in K.S.A. 59-2121(c).
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, John A. Sanders, from his conviction of first-degree premeditated murder. He was sentenced to life imprisonment with a hard 40 sentence. The victim, Robert Bertsch, was found lying on the side of the road in Kansas City, Missouri. When Bertsch was identified, the police went to his residence in Kansas City, Kansas. No one responded to their knock on the front door, so they went to the rear door where they found what appeared to be a single drop of blood and fresh tire tracks. From the outside of the house, through a small pane glass window near the rear door, the police could observe a small porch area with what appeared to be red blood on the door jam.
Police obtained a search warrant and entered the residence where they found a heavy concentration of blood on a fold-out couch bed in the living room and blood splatters on the walls going up to the ceiling. In the bathroom, police noticed blood, gauze pads, and band-aid wrappers, “consistent with someone having washed and cleaned themselves there in the sink area.” While police were at the residence, Kansas State Parole Officer Otis Laskey contacted police and indicated he was looking for Sanders for a probation violation.
On Monday, February 1, 1999, Laskey and Deputy Marshal Matt Cahill drove to Sanders’ mother’s residence looking for Sanders. As they approached the house, they saw Sanders in the front yard talking to a woman, who was later identified as Sanders’ mother. When Sanders saw the officers he ran. After apprehending Sanders, as the officers were taking him to the car, Sanders’ mother said, “Please tell me you didn’t do it, please tell me you didn’t do it.” Although the officers identified themselves as police while taking Sanders into custody, Laskey and Cahill did not inform Sanders of his Miranda rights at that time because they “had no intention of asking him any questions.” Sanders was, however, made aware that there was a parole warrant for his arrest. On the way to the Wyandotte County Jail, Sanders told the officers that his mother thought “he killed his friend that he lived with . . . [but] that he hadn’t.”
Later, Detective Terry Mast, of the Kansas City, Kansas, Police Department, picked up Sanders from the Wyandotte County Jail and took him to his office to question him concerning Bertsch’s death. At that time, Mast advised Sanders of his Miranda rights. During this first interview, after Sanders signed a Miranda waiver, two detectives questioned Sanders about Bertsch and his whereabouts on the night of the homicide. When Sanders told them he did not want to talk to them, detectives stopped the interview and took him back to jail. Mast noticed a stain on Sanders’ shirt that looked like blood, so he asked jail officials to gather Sanders’ clothes for testing. Later, Sanders indicated to Mast that he got blood on his clothes when he moved the body. Bruises on Sanders’ hands were also photographed. Sanders then told Mast that he had not been truthful with him and that he wanted to talk to him. Sanders was again transported to the detective bureau where he made a statement before a police typist. After the statement was prepared, Sanders was given the opportunity to read and sign it.
Sanders said that on Thursday, January 28, he and Bertsch went to Wal-Mart, then to the liquor store to purchase some alcohol, and then “went to an address on Riverview where they purchased some rock cocaine.” From there, they returned to Bertsch’s house where they drank and smoked crack cocaine. Sanders testified that they tried to have sex but were unable to because of the effects of the cocaine. Later, Sanders and Bertsch picked up Dave Edminster at Sanders’ uncle’s house. The men drove around in Bertsch’s car for approximately 45 minutes to an hour, smoked more crack cocaine in the car with Edminster, and then returned to Bertsch’s house after dropping off Edminster. In his statement, Sanders said that sometime between 11:30 p.m. and midnight he took Bertsch’s car back to Riverview to purchase another rock of crack cocaine.
Sanders testified that Bertsch had given him a key to the back door earlier and that Bertsch gave him $15 “to get some more dope.” Upon returning to Bertsch’s house around midnight or a little after, he saw Bertsch lying nude with a large amount of blood on him and a blue robe over him. Sanders stated that he felt for a pulse but could not find any, panicked, and, knowing he was wanted for a parole violation, attempted to “clean up.” Sanders wrapped the body in a light blanket, put it in the trunk, and disposed of it in the “west bottoms” of Kansas City, Missouri. Then, after returning to Bertsch’s house for approximately 10 minutes, Sanders went to 861 Riverview and stayed there the rest of the night. Sanders told Mast that he loaned Bertsch’s car to one of the people who lived at the Riverview address and that they had not brought it back. Sanders testified at trial that he had known Bertsch for about 10 years and had lived with him for approximately 2 weeks prior to January 28, 1999.
At trial, several other witnesses testified concerning the events that occurred during the week preceding Bertsch’s homicide. Clifford Brent testified that 1 week prior to Bertsch’s homicide, Bertsch had arrived at Trans-Supply late for work. Brent testified that Bertsch said that his car was stolen, and he had to walk to work, but that he planned to wait until lunch to call police. Around 10 or 10:30 a.m., Sanders arrived at Trans-Supply with Bertsch’s car keys in his hand. According to Brent, Sanders said that he had found Bertsch’s car “over on Parallel,” and that Bertsch reacted angrily. After driving off with Sanders and then returning to work 10 minutes later, Bertsch told Brent that he did not call police earlier because he assumed that Sanders had taken his car. Bertsch told Brent that his house had a deadbolt lock and that he always left his keys in the lock overnight in case there was a fire or an emergency. Further, Bertsch said that he had let Sanders spend the night with him and his keys were gone that morning when he got up. Bertsch told Brent that he had taken Sanders to 10th and Central, put him out of the car, and told him never to come around his place again.
Bertsch’s daughter Saraphine testified that her parents were divorced and that she generally spent 4 days a week at Bertsch’s house. Saraphine stated that it was Bertsch’s habit to keep the house locked, even when they were at home. She also testified that on Friday, January 22, 1999, and on Sunday, January 24, the week before Bertsch’s homicide, she and her best friend Amanda Powers spent the night at Bertsch’s house. Sanders also spent the night there. Saraphine testified that Bertsch and Sanders had a sexual relationship. At that time, Saraphine and Amanda were both 15 years old and Sanders was 24. Sanders repeatedly told Amanda how beautiful she looked and that he would get the car from Bertsch and pick them up from high school to take them somewhere. Saraphine said that Sanders was having trouble getting the car because Bertsch would not let him take it, because when he let him take it before, “he never brought it back until two weeks, maybe three weeks later.”
Amanda testified that Sanders had kissed her at Bertsch’s house. Amanda stated that on Monday and Tuesday after school, Sanders called her, appearing aggravated. He told her he still wanted to get the car but did not think he would be able to get it. Amanda testified that in addition to the plan to pick up both girls after school, there was a second plan for Sanders to pick her up on Saturday, January 30, 1999, so the two of them could go out by themselves.
Aaron Barnett testified that on Thursday night, January 28,1999, he was living with his girlfriend at 861 Riverview when Sanders came there to buy crack cocaine. According to Barnett, Sanders was driving Bertsch’s car. Barnett saw Sanders by himself again at the Riverview address after midnight. According to Barnett, Sanders did not have any money to buy crack cocaine when he came back the second time and wanted to know if anyone wanted to buy the car, but no one did.
Later, Sanders drove Barnett, his girlfriend, and her nephew to a store. As they were driving, Sanders showed Barnett some papers in an attempt to show he had title to the car and could sell it. Barnett noticed a red smudge on the brown envelope. Barnett testified that on the way to the store, Sanders asked him if they wanted to see a body in “the bottoms.” In Barnett’s statement, he said that Sanders told him that he had killed the guy he lived with. Barnett’s testimony during cross-examination wavered as to whether Sanders admitted that he was the one who killed Bertsch. However, Barnett clearly testified on redirect that Sanders told him that “he killed the body.”
After returning to the house on Riverview, Sanders stayed there the rest of the night. In addition to offering to sell the car, Sanders tried to sell a refrigerator and a stove to the people at the Riverview address. The next morning Barnett woke up to the news that police “found the body in the west bottoms.” Barnett testified that Sanders was in the front room on the floor asleep and Barnett woke his girlfriend with the thought that “baby, he really did it.” Someone telephoned Barnett that morning, telling him the police were on their way over to the Riverside address looking for the car and for Sanders. Barnett said Sanders reacted in a “real nervous” manner upon hearing that, and that “he got up, put on his shoes . . . looked out the door and . . . was gone . . . .”
Bertsch’s car was not at the Riverview address when Sanders left. Someone had given Sanders crack cocaine in exchange for the use of it, and they had not returned it. On Monday, February 1, 1999, police found Bertsch’s car at a towing company. The rear bumper and trunk were stained with blood, and police found various items in the trunk, including documents concerning Bertsch.
Subsequent DNA analysis of blood found on the items gathered by police was inconclusive, due to a malfunction of the DNA analysis machine.
Dr. Sam Gulino, a forensic pathologist with the office of the medical examiner for Jackson, Clay, and Platt Counties, Missouri, determined that Bertsch’s homicide resulted from blunt trauma from a weapon sometime prior to midnight or 12:30 a.m. Gulino noted that defensive wounds were present on Bertsch’s right forearm and hand. Additionally, the State asked Gulino to explain where the beating began. Gulino stated that, based on the injuries to Bertsch’s neck and shoulders, it was possible that at some point during the attack he was either partially kneeling on the floor with his head on the fold-out bed or was lying on the bed with his head hanging over the side. Thus, the rails of the bed could have caused the bruising and lacerations to his neck and upper chest. Gulino indicated that the beating probably started in one area of the bed and finished in another. Gulino testified that the areas of bruising found on Sanders’ hands were consistent with what he would expect from an assailant beating a victim with a weapon. He also noted that the injuries to Bertsch’s collarbone had a pattern of stripes which would be consistent with a weapon such as a pipe with threads on it.
A jury convicted Sanders of first-degree premeditated murder. He subsequently received a hard 40 sentence. This appeal followed.
I. VOLUNTARINESS OF STATEMENT
The ultimate issue of voluntariness of a confession is a legal question requiring independent appellate determination. See Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); State v. Vandiver, 257 Kan. 53, 57-58, 891 P.2d 350 (1995). “ Tn reviewing a trial court decision regarding the suppression of evidence, 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.’ [Citations omitted.]” State v. Baston, 261 Kan. 100, 104-05, 928 P.2d 79 (1996).
This coui’t has developed general rules for evaluating whether a confession is voluntary:
“ ‘In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include 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.’ [Citation omitted.]” Baston, 261 Kan. at 105.
A Jackson v. Denno hearing was held prior to trial. At that hearing, Sanders testified that during the two occasions he was transported from the jail to the police department he asked for an attorney and Mast simply responded by asking Sanders whether he had an attorney. Sanders stated that he felt intimidated during the interview because the police officers were all armed. In addition to describing the circumstances of this interview, he described a prior arrest and statement given to police without an attorney:
“Q. Okay. Did you ask for an attorney in that case?
“A. Yes, I did. And that’s the one — the reason I had a problem giving him a statement because I told him I was shafted in that one when I asked for an attorney, they decided to take — they did an interview prior to getting die attorney and they used diat against me.
“Q. Okay. And you had that experience during die interview tiiis time, right?
“A. Yep.
“Q. And you knew that if you asked for an attorney, diey couldn’t interview you, right?
“A. And that’s what I did.
“Q. Okay. So your testimony is you asked for an attorney, but dien you went ahead and gave a statement anyway?
“A. Yeah, because I didn’t know it was on the record. It was just — he was taking notes is all he was doing.
“Q. Okay. And how about the time they had a secretary actually sitting there - typing away?
“A. That one I knew it was on die record.
“Q. Okay. You didn’t ask for an attorney at that time?
“A. No, I didn’t. Thought I only had to ask once.”
Sanders further testified that the only reason he could recite for talking to the detectives without an attorney was “ignorance.” Mast, however, testified that Sanders never asked for an attorney. Reviewing the conflicting testimony, the trial court found Mast’s testimony to be more believable and that Sanders knowingly signed a valid waiver of his right to counsel and his right to remain silent and then proceeded to make his statement.
“If there is substantial competent evidence to support the trial court’s findings that the defendant voluntarily, knowingly, and intelligently waived his rights, such findings will not be disturbed on appellate review. [Citation omitted.]” State v. Esquivel-Hernandez, 266 Kan. 821, 826, 975 P.2d 254 (1999). It is not this court’s func tion to reweigh the evidence, but rather to determine whether the trial court’s finding is supported by substantial competent evidence.
“ ‘Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, “substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ ” In re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998) (quoting Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 [1993]).
Here, supporting evidence validates the lower court’s decision. Sanders was approximately 24 years of age at the time he made and signed the statement, and there is no indication that Sanders’ level of intellect is such that it would be unreasonable to believe he could not make a voluntary statement of his own free will. Sanders’ testimony during the Jackson v. Denno hearing established that he knew that police must stop the interview upon his request for an attorney. Sanders argues that despite his knowledge that police must stop their interview upon a request for counsel, he proceeded to give a statement to the detectives, out of sheer ignorance, after unsuccessfully requesting the assistance of counsel. Testimony given by Mast contradicts that of Sanders, indicating that Sanders never asked for an attorney. Significantly, both witnesses testified that Mast had previously returned Sanders to the jail upon his request to terminate the first interview. This serves to verify (1) Mast’s compliance with procedural safeguards and (2) Sanders’ knowledge that the interview could be terminated at any time he wished. Sanders’ actions indicate both an awareness of his rights and a conscious choice to waive them. We find that Sanders voluntarily waived his Miranda rights and that the trial court’s admission of his statement was not in error.
II. PREMEDITATED MURDER
Sanders also contends that the evidence produced at trial was insufficient to support a finding that he committed the murder of Bertsch with premeditation.
“When die sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all die evidence, viewed in the light most favorable to die prosecution, the appellate court is convinced that a rational factfinder could have found die defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
“A verdict of guilty in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial.” State v. Dunn, 249 Kan. 488, 491, 820 P.2d 412 (1991).
“The probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. [Citation omitted.] When a verdict is challenged for insufficiency of evidence or as being contrary to die evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. [Citation omitted.]” State v. Juiliano, 268 Kan. 89, 97, 991 P.2d 408 (1999).
The elements of first-degree murder are set forth in K.S.A. 21-3401: “Murder in the first degree is the killing of a human being committed: (a) Intentionally and with premeditation.” Thus, the State was required to prove that Sanders killed Bertsch intentionally and with premeditation. Although there were no witnesses who saw Sanders kill Bertsch, sufficient circumstantial evidence exists so that a rational factfinder could have found that Sanders intentionally killed Bertsch.
Bertsch’s house had a deadbolt lock, and it was his habit to keep the house locked even when he was at home. Sanders testified that Bertsch shut the doors when he left. There was no sign of a forced entry at the residence, and because four necklaces were found on the body, robbery was not a likely motive for the killing. Bertsch had given Sanders a key to the back door. In addition, although Sanders testified that Bertsch had given him $15 to purchase more crack cocaine, Barnett testified that Sanders did not have any money the second time he visited the Riverview residence. When he showed up at the Riverview residence sometime after midnight on Januaiy 29, Sanders was driving Bertsch’s car and tried to sell the car, a refrigerator, and a stove to get money to purchase more drugs. Sanders expressed to both Amanda and Saraphine that he originally wanted to use Bertsch’s car but that Bertsch would not let him.
The record provides further direct and circumstantial evidence. Barnett testified that Sanders said “he killed the body.” Moreover, Sanders attempted to clean up the scene of the crime and disposed of the body in the west bottoms of Kansas City, Missouri. At the time of his arrest, blood was on Sanders’ clothes which he indicated was Bertsch’s blood. Cuts and bruises were on Sanders’ hands, which Gulino explained would be consistent with what he would expect on an assailant who administered a beating. When viewed in a light most favorable to the prosecution, a rational factfinder could believe that Sanders intentionally killed Bertsch.
The next matter for consideration is whether Sanders acted with premeditation. “ ‘Premeditation under the law does not require any specific time frame.’ ” State v. Moncla, 262 Kan. 58, 72, 936 P. 2d 727 (1997) (quoting State v. Kingsley, 252 Kan. 761, 851 P.2d 370 [1993]). Sanders’ theory is that because all the facts under which the killing occurred are unknown, there is no evidence to prove that the killing was carried out in a premeditated fashion.
In State v. Saleem, 267 Kan. 100, 105, 977 P.2d 921 (1999), we stated that “[premeditation ‘is a state of mind’ relating to a person’s reasons and motives for acting as he or she did.” There, this court found sufficient evidence of premeditation where the defendant instigated the fight, had sufficient time to think about his actions as he rose from the ground, and responding with deadly force, shot the victim not one but four times. 267 Kan. at 106.
Here, the State’s theory is that Sanders developed a motive to kill Bertsch because he wanted to use his car for a date with Amanda on Saturday, but Bertsch repeatedly refused to let him use it. The State asserts that premeditation may be inferred from the circumstances surrounding the homicide, in particular the dealing of lethal blows after Bertsch was rendered helpless.
In State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000), this court stated:
“ ‘The evidence of premeditation need not be direct and often is established by circumstantial evidence. A conviction of even the gravest offense may be sustained by circumstantial evidence. [Citation omitted.] Premeditation cannot be inferred from the use of a deadly weapon alone; it may be inferred where other circumstances also exist. [Citation omitted.] Circumstances which may give rise to die inference of premeditation include: (1) the nature of die weapon used; (2) lack of provocation; (3) die defendant’s conduct before and after die killing; (4) direats and declarations of die defendant before and during die occurrence; and (5) die dealing of ledial blows after the deceased was felled and rendered helpless. [Citation omitted.]’
" . . The juiy has a right to infer premeditation from die established circumstances of die case provided die inference is a reasonable one.’ ” Murillo, 269 Kan. at 286 (quoting State v. Cravatt, 267 Kan. 314, 328-29, 979 P.2d 679 [1999]).
Therefore, it is necessary to review the circumstances giving rise to the inference of premeditation:
(1) Nature of the weapon. Gulino testified that he could not tell for certain what kind of weapon was used on Bertsch. However, he testified, “The only patterns that we do have are the three linear areas on his right cheek and the injury over his left collarbone which had some little — it was a scrape that had some sort of stripes in it, a pattern that you can sometimes see with something that has threads on it such as a pipe with thread on the end . . . The murder weapon was never located by police.
(2) Lack of provocation. To mitigate murder to manslaughter, there must be provocation “calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). In his brief, Sanders argues there was no evidence of provocation in this murder and that it is possible the killing was spontaneous. The State’s theory of the case was that Sanders killed Bertsch to gain access to his car for an outing with Amanda. When viewed in a light most favorable to the prosecution, a rational factfinder could reasonably find a lack of provocation for this killing.
(3) Conduct before and after the killing. One week before the homicide, Bertsch had to walk to work when Sanders took his car without permission. Sanders wanted to get Bertsch’s car so he could meet Amanda on the Saturday following the murder. Saraphine said that Bertsch would not let Sanders take the car because Sanders had not returned the car for 2 or 3 weeks the last time he borrowed the car. After the homicide, Sanders dumped Bertsch’s almost nude body 3 feet from the street in the west bottoms area of Kansas City, Missouri. Later that night, he indicated to his ac quaintances that he had title to Bertsch’s car and tried to sell the car, a refrigerator, and a stove. He also asked them if they wanted to see a body and told Barnett that he “had killed the body.” In addition, Sanders attempted to evade the police the next morning and appeared nervous when he heard police were on their way to the Riverview residence. After Mast made arrangements to gather Sanders’ clothes to test for blood and to photograph the bruises on Sanders’ hands, Sanders indicated that he had not been truthful initially and wanted to make a statement.
(4) Threats and declarations of Sanders before and during the occurrence. The record does not indicate any threats or declarations were made by Sanders before the occurrence. However, Barnett testified that Sanders told him that “he killed the body.”
(5) Dealing lethal blows after Bertsch was felled/rendered helpless. Here, Bertsch was struck in the head and body numerous times on the skull, face, back, ribs, and arm. The severity of the beating and the repetitive nature of the abuse inflicted to the body indicate that the beating continued for some time.
Gulino characterized one injury to Bertsch’s right forearm as a defensive injury. Furthermore, Gulino believed die attack began on one side of the bed and ended on another. There was no direct testimony establishing whether possible movement of Bertsch’s body was voluntary or involuntary, i.e., a result of the force of the beating, or from Bertsch attempting to escape the attack.
In light of the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found Sanders guilty of premeditated murder beyond a reasonable doubt.
III. SPEEDY TRIAL
The next issue for determination is whether the trial court erred in denying Sanders’ motion to dismiss alleging violations of his constitutional and statutory rights to a speedy trial. “This issue involves a question of law, over which we have unlimited review.” State v. Smith, 271 Kan. 666, 681, 24 P.3d 727 (2001).
Kansas follows the four-point analysis found in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), for claims of a violation of the right to speedy trial under the Sixth Amendment to the United States Constitution. In that case, more than 5 years passed from the time of Barker s arrest until his trial. In Kansas, delays of a little more than a year are held not clearly presumptively prejudicial to the defendant’s right to a speedy trial. Smith, 271 Kan. at 683; State v. Hill, 257 Kan. 774, 778-79, 895 P.2d 1238 (1995); State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989). Here, less than 9 months passed between Sanders’ arrest on February 2,1999, and the trial date of October 25,1999. Therefore, the length of delay is not presumptively prejudicial, and there is no necessity for further inquiry into the balancing test. State v. Green, 260 Kan. 471, 473-74, 920 P.2d 414 (1996). There was no violation of Sanders’ constitutional right to a speedy trial.
The next consideration is Sanders’ statutory right to a speedy trial. Sanders asserts that sometime in mid-July, his confinement for parole violation expired. Since, at that time, he was being held in jail solely on the charge of first-degree murder, Sanders contends that the State had 90 days from mid-July to bring him to trial, which it failed to do. In essence, Sanders’ contention is that K.S.A. 22-3402’s 90-day mandate should start running again after a defendant has completed any jail time due to crimes other than the subject criminal charge. The State’s position is that the statute cannot be read that way. Because Sanders’ initial incarceration was not solely for the crime charged of first-degree murder, the State argues that K.S.A. 22-3402 would not apply to him.
K.S.A. 22-3402, in pertinent part, reads:
“(1) 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 die charge, such person shall be entided to be discharged from further liability to be tried for die 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).
“(3) The time for trial may be extended beyond die limitations of subsections (1) and (2) of this section for any of the following reasons:
(c) There is material evidence which is unavailable; diat reasonable efforts have been made to procure such evidence; and that diere are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted die state on diis ground, unless for good cause shown . . .
We believe this question is resolved by State v. Brown, 266 Kan. 563, 571-72, 973 P.2d 773 (1999). In Brown, the defendant was arraigned on March 22, 1996, and his case was set for trial on June 17, 1996 (within 90 days). On June 6, he obtained a continuance in order to send material away for DNA testing. The motion was granted for an 89-day continuance. The trial court heard arguments similar to what we have before us and held:
“The evidence attempted to be obtained under K.S.A. 22-3402(3)(c) was material. This did not change when die testing or lack of it did not result in admissible evidence. See State v. Green, 254 Kan. 669, 674, 867 P.2d 366 (1994) (continuance proper even though State did not introduce DNA evidence). The State is not required to show that die evidence meets die Frye test before its requested continuance can be granted. It is entitled to attempt to match the bones and teedi fragments found at the crime scene to the victim’s DNA. The continuance was properly granted. The speedy trial right was not violated.” 266 Kan. at 571-72.
In Green, we held:
“Cortez was arraigned December 14,1990. Trial was originally set for Februaiy 25, 1991. On that date, the trial was continued to March 18, 1991. On February 28, 1991, die State filed a motion to extend die time to bring defendant to trial by 30 days because the DNA test results from Life Codes, Inc., would not be available until March 11, 1991. The State’s motion for a 30-day continuance to obtain the evidence was granted. On March 27, 1991, the State filed a second motion to extend the time required to bring die defendant to trial because material evidence was not available, this time requesting an extension of 90 days. In its motion, the prosecution stated diat the DNA test results from Cellmark Diagnostics would not be available prior to April 8, 1991, and, in addition, one of die State’s witnesses, Dr. James Bridgens, a forensic padiologist, was out of the United States until April 23, 1991. The State’s motion for a second continuance was also granted by die court. Cortez’s trial commenced on June 24,1991, within 120 days after the original February 25, 1991, trial setting.
“Where material evidence is unavailable and reasonable efforts have been made to procure the evidence, a second continuance ordered by die court is reasonable and proper where die first continuance was for less than 90 days and die trial commenced within 120 days from the trial date on which die first continuance was granted. See State v. Welch, 212 Kan. 180, 509 P.2d 1125 (1973). Defendant’s trial was commenced within the period allowed by K.S.A. 22-3402(3).
“When Cortez’s trial commenced, the State admitted that because of the expense it would not introduce the DNA test evidence. Cortez renewed his claim that his right to a speedy trial had been denied and now argues the DNA evidence was not material; therefore, the State’s requests for continuances were not necessary. We disagree. Cortez was brought to trial within the statutory period. There is no suggestion that the State did not intend to use the DNA evidence at trial or requested the continuances to gain an advantage. The continuances granted to the State to obtain the evidence did not violate Cortez’s statutory or constitutional rights to a speedy trial.” 254 Kan. at 672-75.
We hold that under the facts of this case, Sanders’ statutory and constitutional rights to a speedy trial were not violated.
IV. CONSTITUTIONALITY OF A HARD 40 SENTENCE
On appeal, Sanders challenges the constitutionality of the Kansas hard 40 sentencing statute.
“Determining whether a statute violates the constitution is a question of law. When determining a question of law, this court may exercise an unlimited de novo standard of review.” Lemuz v. Fieser, 261 Kan. 936, Syl. ¶ 1, 933 P.2d 134 (1997). This court recently held in State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), that the Kansas hard 40 sentencing statute violates neither the Sixth Amendment right to jury trial nor the Fourteenth Amendment Due Process Clause of the United States Constitution. In addition, this court held in Conley that the hard 40 sentencing statute does not violate § 5 of the Kansas Constitution Bill of Rights. 270 Kan. 18, Syl. ¶ 3. Thus, Sanders’ argument fails.
V. AGGRAVATING CIRCUMSTANCES
The final matter for consideration is Sanders’ contention that the trial court erred in finding that aggravated factors existed justifying the imposition of the hard 40 sentence pursuant to K.S.A. 21-4638. Pursuant to K.S.A. 21-4635, convicted defendants are subject to a mandatory term of imprisonment of 40 or 50 years in one of two situations. The first is when “a defendant is convicted of the crime of capital murder and a sentence of death is not imposed . . . .’’K.S.A. 21-4635(a). The second is when “a defendant is convicted of murder in the first degree based upon the finding of premeditated murder . . . .” K.S.A. 21-4635(a). Here, a jury convicted Sanders of premeditated murder in the first degree un der K.S.A. 21-3401, making it necessary for the trial court to determine whether to sentence Sanders to a mandatory term of imprisonment of 40 years. In making its determination, “the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4636 and amendments thereto and any mitigating circumstances.” K.S.A. 21-4635(b).
The transcript of the sentencing hearing reveals that the court found that this crime was committed in an especially heinous, atrocious, and cruel manner under K.S.A. 21-4636(f) because Bertsch “was beaten to death,” and because “the defendant took Mr. Bertsch or Mr. Bertsch’s body, if he was dead at that point, took him and dumped him by the side of the road.” Here, Sanders contends that there was insufficient evidence to support the trial court’s finding that he committed the crime in an especially heinous, atrocious, or cruel manner.
The version of the hard 40 statute in effect at the time of this crime does not contain a requirement that the trial court use the beyond-a-reasonable-doubt standard when determining that one or more aggravating circumstances existed. “When the legislature eliminated the jury from the determination, it removed the express standard of proof.” State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998). Because the hard 40 statute does not increase the prescribed penalty, but only changes the mode in which it is carried out, the factual determination of aggravating circumstances need not be proven beyond a reasonable doubt in order to comply with the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). “We review all the sentencing evidence, viewed in the light most favorable to the State. If we conclude a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance, we must affirm.” Conley, 270 Kan. at 27.
“All murders are heinous, atrocious, and cruel.” State v. Cook, 259 Kan 370, Syl. ¶ 9, 913 P.2d 97 (1996). “However, exceptional circumstances must exist before a murder can be classified as ‘es pecially heinous, atrocious or cruel.’ ” State v. Spry, 266 Kan. 523, 531, 973 P.2d 783 (1999). "" The hard 40 sentence should be reserved for special cases .... Otherwise, the legislature would have mandated the hard 40 sentence in all first-degree murder cases.’ ” 266 Kan. at 531 (quoting State v. Willis, 254 Kan. 119, 129, 864 P.2d 1198 [1993]).
The legislature amended the language of K.S.A. 21-4636(f) effective July 1, 1999, to provide further elucidation of “especially heinous, atrocious or cruel manner.” However, it must be noted that “[c]riminal statutes and penalties in effect at the time of a criminal offense are controlling.” State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 (1998). This crime was committed on or about January 29, 1999, so the 1999 amendment to K.S.A. 21-4636(f) does not apply to this case. Therefore, we look to case law to define what constitutes an especially heinous, atrocious, or cruelly committed crime.
""A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to [his] or [her] ultimate fate.” Willis, 254 Kan. 119, Syl. ¶ 4.
In Spry, this court noted that ‘"case law has consistently held that, in order to establish the murder as "especially heinous, atrocious, or cruel,’ a victim must suffer serious physical abuse or mental anguish before death.” 266 Kan. at 531-32. In Spry, the defendant used an axe to strike the victim in the head as she was lying face down in her bed. There was no evidence that she suffered repeated blows while she was alive or whether she was awake at the time of the attack.
Here, the autopsy photographs evidence the vicious repeated blows to Bertsch’s back, skull, and the side of his face. Gulino testified there was bruising on his right forearm due to defensive posturing. Gulino indicated that he believed the beating began on one side of the fold-out bed and ended on another. He testified that it was possible that the injuries to Bertsch’s neck and chest were due to being beaten while hanging over the side of the bed. There were blood splatters on the walls, ceiling, floor, bedding, and on Sanders’ clothing. Sanders had bruises on the palms of his hands from holding an object he hit Bertsch with. The crux of this matter is whether Bertsch suffered serious physical abuse or mental anguish before death.
We hold the judge could have reasonably concluded that Sanders inflicted serious physical abuse on Bertsch before his death. The trial court did not err in imposing the hard 40 sentence.
Affirmed.
Allegrucci, J., concurs in the conviction and dissents to the imposition of the hard 40 sentence. | [
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The opinion of the court was delivered by
Larson, J.:
This appeal presents the narrow question of whether a nonresident medical doctor who was later enjoined from prescribing or dispensing prescription medicine within the state of Kansas also committed unconscionable acts under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., when he dispensed the sexual enhancement drug Viagra to Kansas residents without any physical examination or direct contact other than through an out-of-state internet site. Highly summarized, the Kansas Attorney General conducted a “sting” operation whereby two individuals, one a minor, obtained Viagra from a website operated by Howard J. Levine, a state of Washington medical doctor. The trial court granted the State’s request for an injunction against Dr. Levine but refused to hold his actions were unconscionable under the KCPA; from such ruling the State appeals.
The State contends the trial court erred in limiting its analysis to the statutory examples of unconscionability found in K.S.A. 2000 Supp. 50-627 and by failing to liberally construe the KCPA as required by K.S.A. 50-623. It also contends a $75 charge for an online medical consultation, prescribing Viagra without personal physical examination, and dispensing Viagra to a minor without consultation with the parents were individually or collectivély unconscionable acts.
We first set forth the details of the transaction, which was done at the request of the Attorney General. One of the purchasers, Stuart Nelson, was a minor and the son of Special Agent Teresa Salts. The other purchaser was Special Agent Angelia Crawford.
In attempting to purchase the product, both individuals accessed a website entitled Vsource. They were directed through numerous pages of information, including waivers, general information about the drug, credit card information, and an online consultation regarding medical and sexual history. The first page described the online consultation process as well as the potential for international consultation. The next page was a waiver, stating the reader releases “this service” from all liability associated with the reader’s participation in “the Viagra program.” To continue, the reader agrees he or she is over 21 years of age, does not five in a state that limits access to medication over the internet, has read all available information from the Viagra manufacturer about the potential side effects, is solely interested in personal use of the product for “treatment of compromised sexual performance,” and has recently performed “complete annual history physical examinations and appropriate laboratory studies” to ensure good health. The waiver appeared to have a link to the information available from the pharmaceutical manufacturer. The general information page on the website stated the recommended dosage of Viagra and its indications and warned that individuals taking organic nitrates must not take Viagra.
The next area of the website set forth that an online consultation was available for patients without a prescription. In limiting the efficacy of the consultation, the website stated: “It is in no way a substitute for a general medical .history and physical examination determining general good health with special attention to blood pressure and cardio-pulmonary (heart and lung) status.” The screen further informed the reader that the fee for the online consultation was $75 and would be charged only if the buyer was ap-proved.
The next series of pages viewed by potential buyers was the online consultation form which both Crawford and Nelson at separate times and in separate locations completed.
The parties affirmatively admitted when they filled out the online form that they understood the potential side effects of Viagra and that they would be billed $75 for this consultation only if their application was approved and that all information provided was “truthful and complete.” Nelson left blank the questions concerning allergies and the taking of other prescription medication and did not indicate that he had any of the 15 specific medical problems listed. He left blank the questions concerning his sexual health and changes in sexual function but did answer affirmatively that he had problems achieving erection and stated he had not been evaluated for erectile dysfunction. He stated his date of birth was November 1982. His mother provided him her credit card number and personally supervised the entire order.
Agent Crawford filled out the same form, with similar answers. She stated she was a female on her first attempt to purchase the drug. An individual named Debra attempted to contact Crawford several times,, with the call eventually taken by another agent who posed as Crawford. Debra stated that the order could not be processed for a female, but Debra suggested that Crawford could have a male friend order the drug for her. Agent Crawford resubmitted an order under the name of “Frederick Crawford,” listing his birth-date as August 1972.
Both parties received the pills, and it was stipulated at trial that they were Viagra. The name “H. Levine, M.D.” was typed on the pill bottles, and the website ConfiMed.com was printed at the top of the labels. Investigations revealed that Dr. Levine was not licensed to practice medicine in Kansas, nor was ConfiMed.com licensed to practice pharmacy in Kansas.
The parties were billed in accordance with the charges they had agreed upon for the pills, postage, and consultation.
The Kansas Attorney General on behalf of the State of Kansas and the Kansas Board of Pharmacy sued ConfiMed.com and Dr. Levine, contending he committed unconscionable acts under K.S.A. 2000 Supp. 50-627 and prescribed prescription medication without a physical exam or consultation and without explanation of the side effects. The State argued the entire transaction was unconscionable. Damages, attorney fees, investigative fees, civil penalties under K.S.A. 50-636(a), and a permanent injunction against further violations of the Kansas Pharmacy Act, K.S.A. 65-1626 et seq., were requested. The Board of Pharmacy was subsequently dismissed as a party in that its claims were solely made against ConfiMed.com, which was found to have been dissolved and no longer in existence.
The trial court did not find the acts of Dr. Levine to be unconscionable under the KCPA, but it did enjoin him from dispensing medication or practicing medicine in Kansas. The court held as fofiows:
“Plaintiff contends Defendant Levine, a doctor licensed only in the State of Washington, prescribed and sold Viagra to two undercover investigators for the Kansas Attorney General: one a woman and one a 16-year-old boy, all without a physical examination or other personal contact. These transactions are claimed to have occurred over the Internet. The transactions included misrepresentations by the investigators and contained waivers whereby the investigators indicated they had read manufacturer s information about the drug, understood its contraindications and assumed all risk of use.
"Notwithstanding, however, the Court is not satisfied these facts describe an ‘unconscionable act’ as defined by K.S.A. 50-627, the claim made by the plaintiff. First, the conduct bears no resemblance to the statutory examples of such behavior and further, there was no actual harm done to anyone. Nothing was misrepresented. All drugs furnished were authentic. The pharmacy expert testified that if the waivers in the orders signed by the investigators were true, more would have been understood by them than ‘regular’ doctors and druggists typically advise their patients or customers.
“This does not describe a deceptive, fraudulent or unconscionable consumer practice.”
Our consideration of the question of whether actions are unconscionable under the KCPA is a legal question for the court, Waggener v. Seever Systems, Inc., 233 Kan. 517, 521-22, 664 P.2d 813 (1983), under which our review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
We first look to the provisions of K.S.A. 2000 Supp. 50-627 which the State contends the trial court erroneously applied when it limited its analysis to the statutory examples of unconscionabifity. K.S.A. 2000 Supp. 50-627 and the statutory examples are as follows:
“(a) No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction.
“(b) The unconscionability of an act or practice is a question for the court. In determining whether an act or practice is unconscionable, the court shall consider circumstances of which the supplier knew or had reason to know, such as, but not limited to the following that:
(1) The supplier took advantage of the inability of the consumer reasonably to protect the consumer s interests because of the consumer s physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor;
(2) when the consumer transaction was entered into, the price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by similar consumers;
(3) the consumer was unable to receive a material benefit from the subject of the transaction;
(4) when the consumer transaction was entered into, there was no reasonable probability of payment of the obligation in full by the consumer;
(5) the transaction the supplier induced the consumer to enter into was excessively onesided in favor of the supplier;
(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer’s detriment; and
(7) except as provided by K.S.A. 50-639, and amendments thereto, the supplier excluded, modified or otherwise attempted to limit either the implied warranties of merchantability and fitness for a particular purpose or any remedy provided by law for a breach of those warranties.”
“Kansas Comment, 1973
“1. Section 50-627 forbids unconscionable advertising techniques, unconscionable contract terms, and unconscionable debt collection practices. As under the UCC (K.S.A. 84-2-302), unconscionability typically involves conduct by which a supplier seeks to induce or to require a consumer to assume risks which materially exceed the benefits to him of a related consumer transaction. It involves overreaching, not necessarily deception. The Old Buyer Protection Act had no such provision. ’Knowledge or reason to know’ often will be established by a supplier’s course of conduct.
“2. Subsection (b)(1) includes such conduct as selling an English-language encyclopedia set for personal use to a Spanish-American bachelor laborer who does not read English, or using legal verbiage in a manner which cannot be readily comprehended by a low-income consumer who both reads and speaks English.
“Subsection (b)(2) includes such conduct as a home solicitation sale of a set of cookware to a housewife for $375 in an area where a set of comparable quality is readily available to such a housewife for $125 or less.
“Subsection (b)(3) includes such conduct as the sale of two expensive vacuum cleaners to two poor families whom the salesman knows, or has reason to know, share the same apartment and the same rug.
“Subsection (b)(4) includes such conduct as the sale of goods, services, or intangibles to a low-income consumer whom the salesman knows, or has reason to know, does not have sufficient income to make the stipulated payments.
“Subsection (b)(5) includes such conduct as requiring a consumer to sign a one-sided adhesion contract which is loaded too heavily in favor of the supplier, even though some or all of the contract terms are lawful in and of themselves.
“Subsection (b)(6) applies to misleading subjective expressions of opinion on which a supplier should reasonably expect a consumer to rely to his detriment. For example, a violation of this subsection would occur if a prospective purchaser asked a supplier what the useful fife of a paint job was and the supplier, with reason to know that repainting would be necessary within two years, responded, 'in my opinion the paint will wear like iron.’ Overt factual misstatements expressed in form of opinion are dealt with by 50-626’s proscription of deceptive consumer sales practices. For example, a violation of 50-626 would occur if a prospective purchaser asked a supplier what the useful life of a two-year paint job was and the supplier responded, ‘in my opinion repainting will not be necessary for five years.’ ”
The State’s first argument is premised on the direction of K.S.A. 50-623 of the KCPA which requires its provisions to be “construed liberally to . . . protect consumers from suppliers who commit deceptive and unconscionable practices.” The State contends that the trial court’s ruling involved a “strict” construction of the KCPA, which was improper, as was the trial court’s analysis that centered on the examples the legislature provided in the Kansas Comment to K.S.A. 2000 Supp. 50-627(b).
Dr. Levine more convincingly argues that the trial court’s ruling, while stating that it could find no logical connection between the examples established by the legislature and the actions in issue, also looked to other hallmarks of unconscionable conduct such as whether there was harm to a consumer, whether any misrepresentation occurred, or whether there was a failure to provide authentic goods.
The State is mistaken that the trial court’s ruling was limited to the statutory examples. Although the court wrote: “First, the conduct bears no resemblance to the statutory examples of such behavior,” it went on to note: “[T]here was no actual harm done to anyone.” In viewing the transaction, the trial court held that “[n]othing was misrepresented” and “[a]ll drugs furnished were authentic.”
The trial court specifically noted that if the waivers signed were true, more information would have been known and understood by the purchasers than is typically provided to Kansas patients. The court did not limit its construction to the statutory examples.
The wording of K.S.A. 2000 Supp. 50-627(b) sets the tone for consideration of whether an action is unconscionable when it states: “[T]he court shall consider circumstances of which the supplier knew or had reason to know, such as, but not limited to the following.” It is clear the legislature intended the original subsections of (b)(1) through (b)(6) to be a guide in determining what kind of conduct should be found unconscionable without expressly limiting the court to the statutory examples. See L. 1973, ch. 217, § 5; see also Willman v. Ewen, 6 Kan. App. 2d 321, 324, 627 P.2d 1190, 1192 (1981), aff'd 230 Kan. 262, 634 P.2d 1061 (1981) (“[The KCPA] sets forth certain things for a court to consider, but states they are not the exclusive tests by which a court should determine unconscionability.”).
It should be noted that certain other statutes such as K.S.A. 50-644 (flammable thermal insulation), K.S.A. 2000 Supp. 50-670 (unsolicited telemarketing calls), K.S.A. 50-669 (check identification), K.S.A. 50-669a (credit card sales), K.S.A. 50-692 (prize notification), and K.S.A. 17-1769 (charitable solicitations) specifically make certain conduct unconscionable. The State points to these provisions as showing unconscionability is a broad, sweeping concept that cannot be limited to contract formation issues. Dr. Levine counters that by making specific conduct unconscionable, the legislature implicitly did not intend K.S.A. 2000 Supp. 50-627 to have a broad scope. We do not adopt either argument as being definitive. The legislature has obviously desired for certain conduct to be considered unconscionable per se, but this should in no way contract or expand the right of courts to find (or fail to find) other conduct unconscionable.
In State ex rel. Miller v. Midwest Serv. Bur. of Topeka, Inc., 229 Kan. 322, 324, 623 P.2d 1343 (1981), this court cited the comment to K.S.A. 50-627 (Weeks) in noting the three general categories of conduct proscribed: “[T]hat section forbids ‘unconscionable advertising techniques, unconscionable contract terms, and uncon scionable debt collection practices.’ ” Limitation of implied warranties, added as an example to the statute after the Midwest decision, would be a fourth category. See L. 1983, ch. 180, § 1.
Although unconscionable contract terms were somewhat expanded by the decision of Willman v. Ewen, 230 Kan. 262, 266, 634 P.2d 1061 (1981), in which the contract itself was found to be valid but the subsequent deceptive conduct tainted the transaction as unconscionable, this court has held to general guidelines in determining unconscionability. After reviewing several cases, we concluded: “The cases seem to support the view that there must be some element of deceptive bargaining conduct present as well as unequal bargaining power to render the contract between the parties unconscionable.” Willman, 230 Kan. at 266. Further support is the comment to K.S.A. 50-627 which references unconscionability in the context of the UCC, clearly a contractual-based form of the doctrine: “As under the UCC (K.S.A. 84-2-302), unconscionability lypically involves conduct by which a supplier seeks to induce or to require a consumer to assume risks which materially exceed the benefits to him of a related consumer transaction.” See also Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 758-59, 549 P.2d 903 (1976) (lists 10 factors that aid in applying the doctrine of unconscionability but in situations involving the Uniform Commercial Code).
We hold that the trial court did consider potential unconscionable acts outside of the enumerated examples of K.S.A. 2000 Supp. 50-627(b), and the State’s argument to the contrary must fail.
Before considering the State’s final arguments that three different specific acts of Dr. Levine must be considered to be unconscionable, we briefly mention that there remains unanswered a question of whether the agents were “consumers” as defined under the KCPA. K.S.A. 50-624(b) states: “ ‘Consumer’ means an individual or sole proprietor who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” This is not a question we reach, as the trial court centered its decision on the question of whether- unconscionable conduct existed.
The State contends that charging $75 for an online consultation service, prescribing medication without a physical examination or advisement of the dangers of the medicine, and prescribing Viagra to a minor without consulting the parents or guardian constitute individually or collectively unconscionable practices under K.S.A. 2000 Supp. 50-627.
While we do not retreat from what we have previously said concerning our standard of review as being unlimited, we also note that in Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, Syl. ¶ 3, 677 P.2d 567, rev. denied 235 Kan. 1042 (1984), the court said: “Generally speaking, the unconscionability of acts under the Kansas Consumer Protection Act, K.S.A. 50-623 et seq., and amendments thereto is left to the sound discretion of the trial court to be determined under the peculiar circumstances of each case.”
The Remco opinion also quoted from Meyer v. Diesel Equipment Co., Inc., 1 Kan. App. 2d 574, 570 P.2d 1374 (1977), where the trial court’s finding that the KCPA was inapplicable was reversed but the appellate court upheld the trial court’s determination that unconscionability did not exist with the following statement:
“ ‘The trial court concluded that defendant’s conduct was not unconscionable. We are not of a mind to now hold that defendant’s complained-of conduct was unconscionable as a matter of law. With a concept so nebulous as “unconscionability” involved, it is necessary that a certain amount of leeway be granted trial courts when deciding the unconscionability of acts. Our legislature recognized this and, accordingly, left the unconscionability question to be decided by the court under the peculiar circumstances of each case.’ ” Remco, 9 Kan. App. 2d at 303.
In addition, a review of 50-627 shows that the determination of unconscionability involves not only a review of the written documents but also consideration of the witness testimony as to actions surrounding the transaction. We have long held that the credibility of witnesses will not be reweighed on appeal. State v. Chaney, 269 Kan. 10, 20, 5 P.3d 492 (2000).
The State’s contention that the agreed-upon $75 for an online consultation is unconscionable because the applicants did not receive a material benefit (See K.S.A. 2000 Supp. 50-627[b][3]) lacks merit. The record reflects the applicants failed to give substantive information in blank areas and provided false answers to others. The declaration of Dr. Levine stated the applications were reviewed for any contradictions and, if noted, the prospective purchaser would be rejected. In fact, Agent Crawford’s application truthfully stating that she was a female was rejected.
Nelson and Crawford at best made a bad bargain, but, lacking any indication of deceptive bargaining conduct or unequal bargaining power, the $75 charge for the consultation was not unconscionable. See Willman, 230 Kan. at 266; see also Gonzales v. Associates Financial Sero. Co. of Kansas, 266 Kan. 141, 166, 967 P.2d 312 (1998)(‘‘Transactions that merely appear unfair, or in retrospect are bad bargains, do not state a claim under the KCPA.”) (citing Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, 300-03, 677 P.2d 567, rev. denied 235 Kan. 1042 [1984]).
The State next argues that prescribing Viagra without a physical examination and the actual physical supervision of the patient is unconscionable. The State relies on 21 U.S.C. 353(b)(1) (1994) and the testimony of its pharmaceutical expert to conclude that Dr. Levine’s actions do not comply with established standards of conduct.
The State makes no effort to analogize these facts with any of the examples of unconscionable conduct in 50-627(b). This conduct falls short of this court’s pronouncement in Willman that “there must be some element of deceptive bargaining conduct present as well as unequal bargaining power to render the contract between the parties unconscionable.” 230 Kan. at 266. Also, “[w]here a record is ‘devoid of any evidence of any deceptive or oppressive practices, overreaching, intentional misstatements, or concealment of facts,’ there is no claim under the KCPA. [Remco Enterprises, Inc.] 9 Kan. App.2d at 303.” Gonzalez, 266 Kan. at 166-67.
As the trial court pointed out, Nelson and Crawford paid for Viagra and received Viagra. Further, they falsified their applications by affirmatively stating that they had read the information available about Viagra from the manufacturer and that they understood the potential side effects. At best, the State argues that the conduct is “hazardous to consumers.”
However, in this case, both purchasers did not intend to use the drugs nor did they use the drugs. The lack of a physical examination posed no threat to either of them. They falsified information in order to procure the pharmaceutical. Finally, the State’s pharmacist testified that had the purchasers in fact read the manufacturer information about Viagra, they would know more information than he provides his own customers. He also admitted that the questions asked on the computerized consultation form were more in depth than those he poses to individuals who have been prescribed Viagra. When considering the entire transaction, the facts are insufficient to fall within the purview of K.S.A. 2000 Supp. 50-627.
Finally, the State argues that Nelson’s minority makes this transaction unconscionable. Although Dr. Levine did admit that the prescription should not have been allowed to be dispensed to a minor and this clearly violates a medical standard of conduct, this does not make it unconscionable under K.S.A. 2000 Supp. 50-627.
It must be noted that the evidence presented to the trial court showed that the minor’s parent was present and involved in every step of the transaction. The State failed to present any evidence that Dr. Levine deceived, oppressed, or misused superior bargaining power in supplying or prescribing Viagra to Nelson. Nelson was not overcharged, and the testimony clearly showed that he would never have been allowed to use the medication because of the supervision of his mother. The doctor was enjoined from further practice in Kansas. The trial court said, “I don’t have any trouble with saying . . . these people ought to be de-frocked as medical practitioners, as pharmaceutical practitioners. . . . But, I’m trying to figure out how this is a consumer fraud case.” Ultimately, after examining all of the documents and hearing all of the witnesses, the trial court properly held Dr. Levine’s actions did not involve advertising techniques, contract terms, debt obligation, limitation of warranties, or the type of conduct intended to be considered unconscionable under K.S.A. 2000 Supp. 50-627 of the KCPA.
The public is adequately protected by the injunction that was issued, and the trial court’s refusal to expand the scope of the KCPA under the facts of this case is affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Davis, J.:
This case presents the question of whether the provisions of K.S.A. 58-820 regarding marital deduction gifts under federal tax law and the clearly expressed intent of the testator in his last will and testament to qualify his estate for the marital deduction provide a basis for construing his will to qualify for such deduction, even though the provisions in his will fail to qualify his estate for the marital deduction.
Norman C. Keller died testate on January 5, 1999, a resident of Barton County, Kansas. His will was admitted to probate in the Barton County District Court. His surviving spouse, Karen Keller was appointed as executrix. According to the terms of Norman Keller s will, the residue of the estate was to be given to his spouse if she survived him by more than 365 days. The Internal. Revenue Service (IRS) denied the estate’s claim for the marital deduction because the interest passing to the surviving spouse was a “terminal interest.” See 26 U.S.C. § 2056(b)(3)(A)(2000). “Terminalinterest” in the context of the question we must resolve relates to the period of time Karen Keller must survive before she was entitled to the residue of the estate.
The will as drafted provided that Karen Keller must survive Norman Keller for a period of 60 days before she became entitled to the residue of the estate. However, when executed by Norman Keller, the 60 days provisions were crossed out and initialed, and a 365-day period was inserted. Under federal law, an interest passing to the surviving spouse will qualify for the marital deduction “only if it occurs within a period not exceeding 6 months after the decedent’s death.” 26 U.S.C. § 2056(b)(3)(A). Thus, the estate did not qualify for the marital deduction because 365 days exceeds the 6 months provided for under federal law. The tax impact upon the decedent’s estate was substantial.
The executrix filed a petition for construction of the will under K.S.A. 58-820, giving notice to all interested parties including the IRS. K.S.A. 58-820, enacted in 1994, provides for the construction of a decedent’s will who has provided for a martial deduction gift in his or her will but has for some reason failed to comply with federal tax law. The statute specifically provides:
“(a) As used in this section:
(1) ‘Marital deduction’ means the federal estate tax deduction allowed for transfers under section 2056 of the federal internal revenue code or the federal gift tax deduction allowed for transfers under section 2523 of the federal internal revenue code; and
(2) ‘marital deduction gift’ means a transfer of property that is intended to qualify for the marital deduction.
“(b) If an instrument contains a marital deduction gift:
(1) The provisions of the instrument, including any power, duty, or discretionary authority given to a fiduciary, shall be construed to comply with the marital deduction provision of the federal internal revenue code;
(2) the fiduciary shall not take any action or have any power that impairs the deduction as applied to the marital deduction gift;
(3) the marital deduction gift may be satisfied only with property that qualifies for the marital deduction; and
(4) with, respect to marital deduction gifts which are under the terms of the instrument, whether determined by a formula or a fixed dollar amount, in a pecuniary amount that is to be satisfied by distribution of assets at their values, as finally determined for federal estate tax purposes and the instrument does not otherwise require that such bequest at time of funding either be of an aggregate fair market value at least equal to such pecuniary amount or that the assets dis tributed in satisfaction of such bequest be fairly representative of appreciation or depreciation, as the case may be, of all assets available to satisfy such bequest, then such fiduciary shall be required to distribute assets in satisfaction of such marital deduction gift which are fairly representative of the depreciation or appreciation, as the case may be, of all assets available to satisfy such bequest.
“(c) The provisions of this section shall have no effect of the administration or interpretation of marital deduction gifts made prior to their effective date.”
Relying upon the above provisions, together with the expressed intent of the testator, the executrix asked the district court to construe the terms of the last will and testament to provide for vesting within 6 months after the decedent’s death under the following provisions of the federal tax law, 26 U.S.C. § 2056(b):
“(1) General rule. Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest — ■
“(3) Interest of spouse conditional on survival for limited period. For purposes of this subsection, an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail on the death of such spouse if—
“(A) such death will cause a termination or failure of such interest only if it occurs within a period not exceeding 6 months after the decedent’s death, or only if it occurs as a result of a common disaster resulting in the death of the decedent and the surviving spouse, or only if it occurs in the case of either such event; and
“(B) such termination or failure does not in fact occur.”
The district court heard the estate’s motion for construction of the will under K.S.A. 58-820(b) and determined the matter as follows:
“7. That the decedent clearly stated in Article Fourth of his Will and again in Article Fifth of his said Will his intent that the residue of his estate, passing under Article Fifth, qualify for the federal estate tax marital deduction and that no such taxes be payable from his estate.
“8. That the decedent’s Last Will and Testament should be construed to substitute ‘sixty days’ for ‘365 days’ and for ‘three hundred sixty-five (365) days’ wherever those phrases appear in the decedent’s Last Will and Testament, in accordance with Code Section 2056(b)(3) and K.S.A. 58-820(b), and in accordance with the decedent’s clearly expressed intent; and that the Will, as so construed, speaks as of the date of death of the decedent.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the finding hereinabove made be and the same are hereby made a part of the order and decree of this Court to the same extent as if fully set forth in this paragraph; that the decedent’s Last Will and Testament is construed to substitute ‘sixty days’ for ‘365 days’ and for ‘three hundred sixty-five (365) days’ wherever those phrases appear in the decedent’s said Last Will and Testament, in accordance with Code Section 2056(b)(3) and K.S.A. 58-820(b), and in accordance with the decedent’s clearly expressed intent; and that the Will, as so construed, speaks as of the date of death of the decedent.”
The estate appealed to the Kansas Court of Appeals all rulings made by the district court. The Court of Appeals issued a show cause order to the estate asking for a response as to whether there existed a case or controversy and whether the appeal was appropriate because the executrix had obtained all the relief requested before the district court. The Court of Appeals cited Blank v. Chawla, 234 Kan. 975, 978, 678 P.2d 162 (1984), and In re Waterman, 212 Kan. 826, 834, 512 P.2d 466 (1973), in its order to show cause. The case was transferred to this court on our own motion. Our jurisdiction is based upon K.S.A. 20-3018(c).
Declaratory Judgments
The cases cited by the Court of Appeals predate the 1993 amendments to K.S.A. 60-1701 et seq. However, these cases provide rehable authority in this state because of the discretion vested in district and appellate courts when considering declaratory relief under K.S.A. 60-1701 et seq. Declaratory relief is not to be entertained for the purpose of settling abstract questions, however interesting or important to the public generally, but is limited to correct errors injuriously affecting the appellant. See Blank, 234 Kan. at 978. Moreover, declaratory relief is generally not available to a party unless that party has been in some way injured or aggrieved thereby. Waterman, 212 Kan. at 834. This court in Johnson County Sports Authority v. Shanahan, 210 Kan. 253, 259, 499 P.2d 1090 (1972), further explained:
“We also think it important to emphasize that the declaratory relief sought is not appropriate in this case since there is no justiciable controversy between adverse parties. It is of course horn-book law that there must be at least two parties who can assert rights which have developed or will arise against each other before an actual controversy can exist which is justiciable under our declaratoryjudgment act. [Citations omitted.] ... In a declaratory judgment action there should be suitable adverse parties so that all issues pertaining to the construction or validity of a statute may properly be raised to avoid multiplicity of litigation.”
Throughout all proceedings before the district court, the Court of Appeals, and this court, notice was sent to the IRS. However, the IRS did not enter an appearance or participate in any proceedings. Absent an adverse party, the question lingers as to whether there is a case or controversy in this action. Moreover, the executrix obtained from the district court all the relief requested.
In response, the estate points to 1993 amendments regarding declaratory judgments which, among other provisions, deleted the requirement that there be an “actual controversy.” See L. 1993, ch. 202, sec. 1. K.S.A. 60-1701 provides:
“Courts of record within their respective jurisdictions shall have power to declare the rights, status, and other legal relations whether or not further relief is, or could be sought. No action or proceeding shall be dismissed or stayed for the sole reason that only declaratoiy relief has been sought. The declaratoiy [action] may be either affirmative or negative in nature; and such declarations shall have the force and effect of a final judgment.”
The estate emphasizes the addition of the language making the district court’s declaratory judgment a final judgment. The estate also relies on the additional amendment that specifically authorizes an executor to obtain a declaration of rights to “determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” K.S.A. 60-1706(c). Finally, the estate points to the statutory language regarding the nature of declaratory relief; i.e., that the declaratory judgment act is “remedial in nature and its purpose is to settle and provide relief from uncertainty and insecurity with respect to disputed rights, status or other legal relations and should be liberally construed and administered to achieve that purpose.” K.S.A. 60-1713.
The necessity for an appeal in this case is based on the United States Supreme Court’s holding in Commissioner v. Estate of Bosch, 387 U.S. 456, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967). Bosch held that the IRS and federal courts are not bound by lower state court decisions but must instead merely give those decisions “proper regard.” On matters of state law, deference is given to decisions rendered by the state’s highest court. 387 U.S. at 465.
States have responded to Bosch by considering appeals where no adverse parties were involved and where the appellants asked the court to affirm the lower court. Massachusetts has a provision in its probate code, Mass. Gen. L. ch. 215, § 13 (1999), permitting the probate court to reserve and report a case to an appellate court for determination. See DiCarlo v. Mazzarella, 430 Mass. 248, 248-49, 717 N.E.2d 257 (1999). DiCarlo used Mass. Gen. L. ch. 215, § 13 to correct a scrivener’s error, thereby satisfying the requirements of Bosch. 430 Mass. at 248-49. Another Massachusetts Supreme Court case, Shawmut Bank, N.A. v. Buckley, 422 Mass. 706, 710, 665 N.E.2d 29 (1996), held it was appropriate to decide a case on stipulated facts because a question existed whether the IRS would abide by the decision of the lower court. The Supreme Court of South Carolina in First Union Nat. Bank of S.C. v. CISA, 293 S.C. 456, 460, 361 S.E.2d 615 (1987), questioned whether it had a case or controversy providing jurisdiction because the “litigants appeared to be closely aligned with one another.” However, the court considered the merits of the appeal since it was convinced that the “underlying purposes of the adversarial system” had been met. 293 S.C. at 461.
Based upon the 1993 amendments to K.S.A. 60-1701 etseq. that included specific provisions regarding the construction of wills and the above authority, we elect to consider the estate’s appeal. The declaratory judgment provisions within K.S.A. 60-1701 et seq. are remedial in nature and specifically authorize an executor to bring a declaratory judgment action to “determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” (Emphasis added.) K.S.A. 60-1706(c). Thus, we proceed to the merits of this appeal.
One critical consideration in this case involves Norman Keller’s intention with regards to gifts qualifying for the marital deduction. The provisions of his last will and testament make it clear that he intended to qualify his estate for the marital deduction. As expressed in Articles Four and Five, there is no doubt that this was Norman Keller’s intention:
“Fourth
“If my wife survives me for a period of at least 365 days, then I devise to her for and during the term of her life such real estate or interests therein, to be selected by my executor from the assets of my estate, the total value of which shall be equal, insofar as possible, the following amount.
“If my wife, Karen A. Keller, survives me as provided in the preceding paragraph, then I give, devise and bequeath to her a life estate interest in such real estate and/or tangible and intangible personal properly, or interests therein, to be selected by my executor from the assets of my estate, the total value of which shall equal, insofar as practicable, the following amount: an amount equal to the ‘exemption equivalent’ as provided by the Tax Reform Act of 1976, as amended by the Economic Recovery Tax Act of 1981, as amended by the Tax Relief Act of 1997, and future amendments thereto for estates of decedents, and shall be determined as of the year of my death, which ‘exemption equivalent’ is $625,000.00 for 1998, and which will be increased in subsequent years, reduced, however, by such deductions therefrom as are applicable to my estate. As such ‘exemption equivalent’ is increased in the future, then the amount of this devise and bequest shall likewise increase. It is my absolute purpose and intention to give my wife a life estate interest in property which will not be a part of her marital deduction, in an amount which will be the maximum amount exempt from Federal Estate Taxes in my estate. I recognize that this amount will be reduced by various amounts including lifetime gifts which may utilize a portion or all thereof, jointly owned property, if any, owned by myself and persons other than my wife, Kansas Inheritance Taxes paid by my estate, debts and expenses of administration of my estate, all which I direct be paid from this portion of my property and not from any gift which qualifies for the marital deduction. If this life estate devise and bequest is calculated to cause any Federal Estate Taxes to be paid in my estate, then the amount thereof shall be decreased to the point where no taxes are payable and the rest of my property, I give, devise and bequeath to my wife as marital deduction property as provided in the following paragraphs.
“My wife is hereby vested with sole and exclusive right to lease any real estate or mineral interests which are a part of the life estate property, for oil, gas or other minerals during her lifetime, ehminating the need for execution by my remaindermen.
“Fifth
“If my wife survives me for a period of at lease 365 days, then after payment of my debts, funeral expenses, expenses of administration of my estate and Federal and Kansas Estate Taxes, if any, I give, devise and bequeath to her absolutely and forever, all of the rest, residue and remainder of my property, real and personal. My purpose in making the provisions in Article Fourth above is to provide that the nonmarital deduction property passing under my Will shall equal the amount of said ‘exemption equivalent’, which was not utilized by me in my lifetime for gifts, and which is not utilized in my estate for the transfer of property to persons other than my wife as provided by the Tax Reform Act of 1976, and the Tax Relief Act of 1997, or future amendments thereto, without being diminished by the payment of my debts, funeral expenses, expenses of administration of my estate, Federal and Kansas Estate Taxes, and that all of the residue of my property shall pass to my wife as marital deduction property.” (Emphasis added.)
The above provisions establish that the decedent intended his gift of the residue of his estate to his wife to qualify for the marital deduction. In accordance with K.S.A. 58-820(b)(l), where the instrument expresses an intent to qualify for a marital deduction gift, the provisions of the instrument “shall be construed to comply with the marital deduction provisions of the federal internal revenue code.” We, therefore, conclude that the district court correctly construed the marital deduction provisions of Norman Keller’s last will and testament and affirm its judgment.
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The opinion of the court was delivered by
McFarland, C.J.:
Jerry D. Rice appeals from the district court’s denial of his motion to correct an illegal sentence.
BACKGROUND
In 1994, defendant was convicted of first-degree murder for the 1992 killing of his wife for which he received a hard 40 sentence. We affirmed his conviction on his direct appeal. State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997). The facts of the crime are not relevant to the sole issue before us and will not be set forth herein.
THE ISSUE
In 1999, defendant filed his motion to correct an illegal sentence. The sole basis for the claim of illegality was the verdict entered by the jury in the sentencing phase of the trial. That verdict is as follows:
“VERDICT
“Life imprisonment with the defendant eligible for parole after 15 years.
Presiding Juror
“Life imprisonment with the defendant eligible for parole after 40 years.
We, the jury, find the following aggravating circumstances to exist beyond a reasonable doubt: [Handwritten] Heinous, Atrocious; & Cruel.
/s/Charles Couts_
Presiding Juror”
Defendant contends the omission of the word “especially” before the handwritten “Heinous, Atrocious & Cruel” renders the imposition of the hard 40 sentence illegal.
DISCUSSION
Under the statutory framework in effect relevant to defendant’s conviction and sentencing, whether or not the hard 40 sentence should be imposed was submitted to a jury. K.S.A. 1992 Supp. 21-4625 set forth the eight aggravating circumstances which could be considered. In the case herein, the State gave notice it would seek imposition of the hard 40 sentence and would rely on subsection (3), a crime committed for the purpose of receiving money or any other thing of monetary value, and subsection (6), a crime committed in an especially heinous, atrocious, or cruel manner. Only subsection (6) was before the jury for consideration. In regards thereto, Instruction No. 5 stated:
“The State of Kansas contends that the following aggravating circumstances are shown from the evidence:
“1. The defendant committed the crime in an especially heinous, atrocious, or cruel manner.
“The term ‘heinous’ means extremely wicked to shockingly evil; ‘atrocious’ means outrageously wicked and vile; ‘cruel’ means pitiless, or designed to inflict a high degree of pain, utter indifference to, or enjoyment of, the sufferings of others.
“A crime is committed in an especially heinous, atrocious, or cruel manner when the perpetrator inflicts serious mental anguish or serious physical abuse before the victim’s death. Mental anguish includes a victim’s uncertainty as to her ultimate fate.”
Instruction No. 8 provided:
“If you find beyond a reasonable doubt that there are one or more aggravating circumstances and that they outweigh mitigating circumstances, then you shall recommend a mandatory minimum term of 40 years. If you recommend that the defendant shall serve a mandatory minimum term of 40 years, you must designate upon the verdict form with particularity the aggravating circumstances which you found beyond a reasonable doubt.
“If you have a reasonable doubt that aggravating circumstances outweigh mitigating circumstances, then it is your duty to return a verdict of life imprisonment with parole eligibility in 15 years.”
In further support of his position that the jury did not make the requisite finding that the crime was committed in an especially heinous, atrocious, or cruel manner, defendant draws our attention to the fact the prosecutor did not use the term “especially” in his final argument to the jury.
In denying the motion herein, the trial judge stated:
“Well, it doesn’t really malee a difference what the prosecutor argued because [the jury was] properly instructed as to what they had to find. I’ll note that nobody questioned that those instructions, which came straight from PIK, were the appropriate instructions and that they appropriately instructed the jury. And I think that the defendant’s argument that the jury was in some way misled is without merit.
“And I also think that the defendant’s argument that the jury didn’t with particularity designate the aggravating factors is also without merit. It was clear to me what they meant. It was clear to everybody else in the courtroom. There was no objection interposed by anyone at that time. There was no objection interposed at the Motion for New Trial, and there was no objection interposed at the time of sentencing. The motion is denied.”
It should be noted that the evidence before the jury in the sentencing phase was the evidence presented in the guilt phase. That is, no new evidence was presented at the sentencing phase. The State made a closing argument, but defendant did not. It is true the State did not use the term “especially” in arguing that the crime was committed in a heinous, atrocious, or cruel manner, but it did use the term “so,” at one point, when posing the question of whether the crime was “so heinous, atrocious and cruel.” (Emphasis added.)
It is well established that juries are presumed to have followed the instructions given by the trial court. State v. Tyler, 251 Kan. 616, Syl. ¶ 13, 840 P. 2d 413 (1992). If this jury’s verdict does require interpretation, the amended notice alleging only one aggravating circumstance, the instructions, the verdict, and the record all indicate the jury found the aggravating circumstance in K.S.A. 21-4625 (6) to exist. Compare State v. Taylor, 212 Kan. 780, 784, 512 P. 2d 449 (1973) (the information, the court’s instructions, and the record are references for interpreting a verdict allowing surplusage to be disregarded when the jury’s verdict is otherwise responsive). See also In re McLean, 84 Kan. 852, Syl. ¶ 3, 115 Pac. 647 (1911) (obvious omissions in a verdict may be supplied by the information).
Furthermore, neither party points out that the jury’s recommendation was also subject to review by the trial court. K.S.A. 1992 Supp. 21-4624 (6) states:
“Notwithstanding the verdict of the jury, the trial court shall review any jury verdict imposing a mandatory term of imprisonment hereunder to ascertain whether the imposition of such sentence is supported by the record.”
Here, defendant does not supply the sentencing transcript or journal entry, or otherwise raise the issue that the trial court’s review of the jury’s recommendation of the hard 40 sentence was erroneous.
The instructions herein clearly advised the jury it could select the hard 40 alternative only if it unanimously found the existence of the sole claimed aggravating factor (crime being committed in an especially heinous, atrocious, or cruel manner) beyond a reasonable doubt and that the aggravating factor outweighed any mitigating factors. We are satisfied that is what the juiy did.
Obviously, the jury should have included the word “especially” on the verdict form. Under the circumstances herein, we conclude this omission does not render the ultimate imposition of the hard 40 sentence illegal.
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The opinion of the court was delivered by
Lockett, J.;
Steven Bloom appeals his conviction of second-degree intentional murder and sentence of life in prison, claiming (1) prosecutorial misconduct deprived him of his rights to due process and a fair trial; (2) the trial court improperly admitted evidence of a threat made by defendant upon the victim’s sister; (3) the trial court denied him of his constitutional right to confront witnesses; (4) the trial court erred in allowing the State to show the jury a photo during cross-examination; (5) the presence of a plain-clothes security guard denied him of his right to a fair trial; (6) he was denied his statutory and constitutional rights to due process and speedy trial; and (7) the State was improperly allowed to endorse an additional witness.
In the early morning hours of October 14, 1998, police were dispatched to Bloom’s residence following a 911 call in which the male caller stated, “I just killed a thief that attacked me in my house, man.” Within minutes, an officer arrived at the scene and observed Brenda Porter running out of Bloom’s house screaming. Brenda told the officer that Bloom had shot and killed her sister Deanna Porter. The officer then saw Bloom exit the house with blood on his legs. The officer ordered Bloom to get on the ground and handcuffed him. Additional officers arrived at the scene.
Upon entering Bloom’s house, officers observed Deanna Porter lying on the floor between the Hving room and kitchen covered by a sheet. Upon fifting the sheet, the officers observed the victim had sustained a massive gunshot wound to the head. The officers observed a butcher knife in the victim’s right hand, with the sharp edge pointed toward her body and only a small amount of blood on the blade. The officers also observed a shotgun, with its barrel pointed toward the Hving room, and one officer indicated he observed a shotgun sheH lying on the ground next to the victim’s body.
After Bloom gave written consent to search his home, officers investigating the scene observed a shotgun sheH lying in the Hving room next to the couch. They also observed blood spatter and marks from the shotgun pellets on the wall, indicating the shotgun had been fired from the Hving room into the kitchen area. The victim’s purse was lying next to the victim’s right hand. Officers opined that the purse, not the knife, had been in the victim’s right hand when the shot was fired. The 12-gauge semiautomatic shotgun at the scene contained three additional rounds of ammunition, the first of which matched the shell found on the ground. Additional ammunition, also matching the empty shell at the scene, was discovered on a closet floor in a bedroom of the house.
Bloom, who had a cut on the calf of his leg, was taken to the hospital to receive treatment. The officer who rode with Bloom to the hospital stated that Bloom had spontaneously asked the officer to shoot him, Bloom. Bloom told the officer that Deanna had come at him with a knife. He stated that he had asked her to marry him 12 or 15 times. Bloom then stated that she was jealous because he had a new girlfriend and had come at him with a knife. Bloom asked the officer to tell him that Deanna was not dead. He stated that he had given her money for dope, but refused to give her any more. On the way to the law enforcement center Bloom also asked, “I just shot her in the hand, right?” The officer noted that Bloom smelled of alcohol but was unaware if Bloom was intoxicated. Another officer stated that prior to arriving at the law enforcement center Bloom had spontaneously stated, “[S]he should have married me if she didn’t want me seeing any other women.”
During a taped interview with police, Bloom indicated that he and Deanna had had a relationship for approximately 3 years and had engaged in sexual relations once every 8 or 9 months. Bloom stated that he had asked Deanna to marry him on numerous occasions, but that she had declined.
Bloom told police that Carol Miller was at his house when Deanna arrived earlier in the evening. Bloom stated that he had gone out and purchased a rock of crack cocaine and that he gave some of it to Deanna and kept some for himself. Bloom indicated that they smoked crack and drank beer and gin. After a few hours, Carol left. Deanna said something to Bloom about “those other bitches,” which Bloom thought was directed at his part-time girlfriends, went to the kitchen, grabbed a knife, and cut Bloom on his leg. She then attempted to cut him in the groin area. Bloom stood up, pushed her away, grabbed a shotgun that was near the refrigerator, and blew her hand off. Bloom estimated he was approximately 2 feet away from Deanna when he fired the shot.
Later in the interview, Bloom indicated that he had tried to shoot Deanna in the neck or shoulder, finally admitting that he had tried to shoot at any part of her. Bloom stated that he had covered Deanna up with the sheet and called 911. Bloom explained that he had described Deanna as a thief in the 911 call because she had stolen a lighter from him earlier in the week. Bloom also admitted to police that he had placed the knife back in Deanna’s hand after she fell, because it had skidded across the floor during her fall. During the interview, Bloom denied all suggestions by the police that he had cut himself on the leg.
Bloom was charged with one count of second-degree intentional murder on October 15, 1998. The complaint was amended to charge Bloom with first-degree premeditated murder on November 19, 1998. Bloom’s trial began June 26, 2000.
Markale Porter, Deanna’s brother, testified that he and his uncle, Stanley Henderson, were at Bloom’s house earlier in the eve ning with Deanna, Bloom, Carol Miller, and Bloom’s next door neighbor. At some point, Markale and Stanley left for approximately 45 minutes to purchase some crack cocaine. Upon their return, Markale and Stanley divided up the cocaine between themselves, Bloom, Deanna, and Carol. Bloom became agitated when he could not find his crack pipe. He became more agitated after he thought Deanna’s pipe was his, but she indicated that it was hers. Bloom then ordered everyone to leave his house. Everyone but Bloom left. Deanna, Markale, and Stanley went to Brenda’s house, just across the street, and sat on her porch.
Markale and Brenda testified that later Deanna returned to Bloom’s house and was admitted. About 5 to 8 minutes later, they heard a gunshot. Markale and Stanley ran to Bloom’s house. Brenda went inside her house to call Bloom. After Markale and Stanley were unable to gain entry to Bloom’s house, they returned to Brenda’s house. When Brenda was unable to get an answer on the phone, she ran to Bloom’s house. Brenda testified that when Bloom answered the door, he told her that Deanna was “up on the floor dead. I just killed her.” Brenda observed Deanna lying uncovered on the upstairs floor. Brenda believed that while she was upstairs with Deanna, Bloom was downstairs. Markale testified he had observed Bloom come out of his house with a bleeding wound on his leg and tell Brenda that he had blown Deanna’s head off. Markale admitted on cross-examination that he had not said anything about hearing Bloom make this statement prior to the preliminary hearing.
Brenda had known Bloom for the past 4 years and visited his house frequently. She indicated that Deanna and Bloom were friends and that Bloom would treat Deanna good sometimes but that other times he would get angry and ask her to leave his house. She testified that Bloom liked Deanna as more than a friend, but that Deanna did not feel the same about him. Brenda testified that she had been over at Bloom’s house earlier that evening, with Deanna, Bloom, Carol, and Bloom’s next door neighbor. Brenda had left after about 30 minutes and returned to her house after Bloom had asked her to leave.
Brenda testified that a week before Deanna’s death, Bloom had threatened to kill Brenda by choking her with his toes if she lied to him about a man he suspected Deanna was seeing. Brenda stated that Bloom was very angry and jealous when he made this threat. Bloom often bragged about being able to kill people with his own hands. After Deanna died, Bloom sent letters to Brenda asking Brenda’s family to forgive him and saying that he did not mean to murder Deanna.
Ruth Porter, Deanna’s mother, testified to the relationship between Bloom and Deanna. Bloom had called Ruth within a couple of months before Deanna’s death and had told her that he loved Deanna, but that Deanna had said there could be no relationship because she did not have relationships with white men. Ruth testified that in the past Bloom had wrongfully accused Deanna of stealing from him and later realized she did not do it.
The cause of Deanna’s death was a gunshot wound to the head. No other internal or external injuries were discovered. The shot was fired within a few feet of her head because stippling from the bits of powder was observed. Deanna tested positive for cocaine and alcohol.
Michael VanStratton, a KBI forensic scientist, testified regarding the blood spatter at the scene. He testified that the victim was in the living room facing the kitchen at the time she was shot. He indicated that the victim was not sitting down nor was she in a full upright position when the shot was fired. He testified that the shooter was either in the living room or in close proximity to it when the shot was fired.
Carol Miller, Bloom’s friend of 6 years, testified she was at Bloom’s house that evening drinking beer with Bloom and Deanna, and that no “men” had shown up at the house during this time. After about 3 or 4 hours, Carol testified she left and that Deanna stayed. Deanna had told Carol she was going to be leaving to go to Brenda’s house. On cross-examination, Carol admitted that Bloom’s next-door neighbor, a male, might have been there that evening, but that she did not remember.
John Sims, a social worker and addictions counselor, testified generally for the defense on the effects of cocaine and alcohol, stating that the combination of the two can impair the ability to think and can impair reality. Sims also testified as to blackouts and how individuals can be in a blackout and still be functioning.
Bloom, testifying in his own defense, stated that he had warned Brenda earlier in the evening that he was tired and that he did not want Brenda to come over to his house. He said that Carol Miller showed up later in the evening and that he had let her in because he had not seen her in awhile. After a few minutes, Deanna arrived. The three of them drank beer and gin. Brenda came over later that evening, followed by Markale and Stanley. Bloom did not admit Markale and Stanley into his house. He told them to leave and they left. After the women finished their drinks, he told them to leave. The women left and Bloom tried to go to sleep. Blo.om testified that he put the shotgun by the refrigerator at that time. Bloom said that he puts the gun by the refrigerator when he is home alone.
Bloom testified he had trouble getting to sleep, and suddenly realized Deanna was standing in front of him. Bloom did not recall how Deanna had entered the house. Bloom said that Deanna asked him for $40 to buy two pieces of crack cocaine. When he refused, Deanna threatened him by saying that she had back up. When Bloom again refused to give her any money, Deanna bumped her chest against him. Bloom backed away from her and sat down in a chair in the kitchen. Deanna walked past him and said, “[I]f it weren’t for them fucking bitches,” and then came at him with a knife. After she cut his leg, he pushed her against the refrigerator. As he started to back away, he grabbed the shotgun. While backing toward the front door he tripped over something and the shotgun went off. When the gun went off, Bloom said that Deanna was sitting down in a chair. Bloom then went over to Deanna, laid the gun down, and observed no damage to Deanna’s body at that time. Bloom was shocked the gun fired because there was not supposed to be ammunition in the firing chamber. When Brenda arrived, Bloom told her he had shot Deanna.
Bloom testified that he cannot handle stress because he suffers from post-traumatic stress disorder and that he shuts down in stressful situations. Bloom is retired from the military and suffered physical injuries during the Vietnam War. He testified he had no recollection of anything that occurred after he told Brenda he had shot Deanna until he was being handcuffed by police. Bloom denied remembering being transferred to the hospital or to the law enforcement center.
After denying to the juiy that he intentionally shot Deanna, Bloom described his relationship with Deanna as being that of friends. He denied stating that they had sexual relations once every 8 or 9 months. Instead, Bloom testified he and Deanna had been involved in a 9-month relationship, but had since gone back to being friends. Bloom admitted he wanted Deanna to be his girlfriend, but claimed he had given up on the idea. He denied having ever asked Deanna to marry him and claimed that he lied to the police about this because he wanted to make her look good and did not think Deanna was dead at that time.
Bloom did not recall making the 911 call. He explained to the jury that he had described Deanna as a thief during that call because she had tried to extort $40 from him to buy crack cocaine. Bloom stated that he did not know she was dead so he put the knife back in Deanna’s hand to protect her.
Bloom was convicted of second-degree intentional murder, an off-grid crime. Bloom’s posttrial motions to set aside the verdict, for a new trial, for a mistrial, and for a judgment of acquittal were denied. Bloom was sentenced to life in prison with eligibility of parole after 10 years. Timely notice of appeal was filed. This court’s jurisdiction is pursuant to K.S.A. 22-3601(b)(l).
PROSECUTORIAL MISCONDUCT
Bloom contends the prosecutor wilfully violated an order in limine that prohibited the State from introducing letters Bloom had written to Deanna. The State maintains that it did not violate an order in hmine, nor did it commit prosecutorial misconduct.
Prior to trial, Bloom filed a motion in limine seeking to exclude any reference to his prior convictions and bad acts. On the day of trial, the trial court granted an order in hmine as to any prior convictions. During the State’s case in chief, the prosecutor asked Ruth Porter about letters Bloom had written to Deanna, and then attempted to introduce a letter into evidence. Outside the hearing of the juiy, Bloom objected to the introduction of the letter into evidence, asserting that the letter had been written while Bloom was in jail and that it would violate the order in limine. At that time, the prosecutor indicated the purpose for introducing the letter was to admit into evidence a statement by Bloom to the effect that if there are not dead bodies littering the street then Bloom did not try to kill anyone. The trial judge held the letter was inadmissible because it violated the order in limine and that if the letter were redacted down to one specific statement it would not have probative value.
During Bloom’s cross-examination by the prosecutor, the following exchange occurred:
“Q.: [Prosecutor]: You are an expert in M-16 rifles, correct?
“A.: [Bloom]: Yes, ma’am.
“Q.: And isn’t it true that you believe yourself to be good enough with weapons that if there are dead bodies, they are there on purpose because you intended to kill them?
“A.: There can be dead bodies without intention. No, that is — no, I don’t believe that.
“Q.: Specifically with respect to you, if there are dead bodies around you, you intended to kill them?
“A.: Absolutely no.
“Q.: Isn’t it true that you wrote a letter to Deanna — .”
At that point, Bloom’s counsel approached the bench and requested a mistrial because this evidence had specifically been excluded earlier in the trial. The prosecutor urged the court that this particular statement was now relevant to prove Bloom’s intent. The trial judge agreed with the defense, but denied defendant’s motion for a mistrial because the contents of the letter had not been revealed to the jury. Bloom was convicted.
Bloom again raised the issue of prosecutorial misconduct in a motion for new trial. In denying Bloom’s motion for a new trial, the trial court held there was no “true violation of the rule in limine,” because “the gist of the letters did not become evidence for the jury to consider.” The prosecutor argues there was no violation of an order in limine because Bloom’s motion in limine did not identify the letter as a specific piece of evidence to be excluded.
A two-part test is used in evaluating an alleged violation of a motion in limine. First, it must be determined whether a violation occurred. Second, if a violation occurred it must then be determined whether the facts elicited during the violation substantially prejudiced the defendant. The defendant bears the burden of showing he or she was substantially prejudiced. State v. Aikins, 261 Kan. 346, 376, 932 P.2d 408 (1997); State v. Warden, 257 Kan. 94, Syl. ¶ 9, 891 P.2d 1074 (1995).
In Kansas, a court’s power to consider a motion in limine arises from its statutory pretrial authority. State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979) (disapproved on other grounds); see K.S.A. 22-3217; K.S.A. 2001 Supp. 60-216. An order in limine is to insure that evidence inadmissible at trial is not offered, because the mere offer of or statements about such evidence would tend to prejudice the jury. State v. Heath, 264 Kan. 557, 581, 957 P.2d 449 (1998). The Quick court set forth the following guidelines in using a motion in limine:
“It is important that a proper written motion be filed to pinpoint the material or evidence to be protected against. This is necessary together with an order of the court setting forth the specific basis for exclusion or admission. . . . The motion should not be general in scope. [Citation omitted.]
“When entering the order it should be temporary in nature. It is entered before trial and no one knows exactly what wiE turn up later during the trial. When a protective order has once been granted the offer of proof during the course of the trial must be made in tire absence of the jury.” 226 Kan. at 312.
Here, when the State first alluded to the letter during direct examination of Ruth Porter, the order in limine did not specifically extend to the letter. However, after an objection by the defense, the trial judge precluded admission of the letter as a violation of the order in limine because it alluded to a prior conviction. At that point, the prosecutor was on notice that this letter was included in the order in limine. When the prosecutor subsequently mentioned the letter during Bloom’s cross-examination, the prosecutor asserted that the court’s prior ruling excluded the letter but did not exclude that particular statement. Although the trial judge did refer to this particular statement differently and appeared to have recognized that the statement itself did not violate the order in limine, the admission of this statement had still been precluded for lack of probativeness. In its brief, the State asserts the statement about the dead bodies became probative after Bloom changed his defense during his testimony from self-defense to that of accident. We note that even if the State believed the statement became probative at that point, the prudent thing would have been for the prosecutor to have requested admission of this statement outside the jury’s presence.
Bloom contends he was prejudiced because the jury heard the prosecutor ask him about a letter he wrote to Deanna and that the jury had to know that the prosecutor was about to show that Bloom had lied in his response to the prosecutor’s question about the dead bodies. Even if this contention is true, Bloom fails to show what substantial prejudice resulted from the State’s violation of the order in Hmine. See Aikins, 261 Kan. at 376. The contents of the letter were never admitted into evidence. Thus, the trial court was correct in denying the request for a mistrial.
Bloom next asserts that he is entitled to have his conviction set aside because of prosecutorial misconduct in cross-examining him about the letter. In order for prosecutorial misconduct to constitute reversible error, the error must be of such magnitude as to deny a defendant his constitutional right to a fair trial. State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000). Three factors should be considered in determining whether to grant a new trial because of a prosecutor’s violation of an order in limine. First, was the prosecutor’s misconduct so gross and flagrant as to prejudice the jury against the defendant? Second, does the admission of the statement indicate ill will by the prosecutor? Third, is the evidence against the defendant so overwhelming that there was little or no likelihood the prosecutor’s violation of the order in limine changed the result of the trial? State v. Crume, 271 Kan. 87, Syl. ¶ 11, 22 P.3d 1057 (2001).
Bloom asserts the prosecutor’s “hyper-technical claim” that although the letter was precluded from evidence this particular statement in the letter was not precluded, demonstrates the prosecutor’s ill will. Bloom argues that the prosecutor’s questioning regarding this statement was based on inadmissible evidence and thus the questioning was made in bad faith. Bloom contends the reference to the dead bodies by the prosecutor caused the juiy wonder what Bloom was hiding. Bloom asserts that the error was compounded when the trial court failed to instruct the juiy to disregard this reference. We note that the record does not indicate Bloom requested an admonishment.
Bloom is correct' in stating that the credibility of his version of the shooting was a critical element in the trial. However, after reviewing the circumstances surrounding the prosecutors statement and the evidence at trial, it can be said that the prosecutor’s statement had little, if any, likelihood in changing.the result of the trial. The evidence as to Bloom’s intent was not overwhelming; however, Bloom’s credibility was damaged by his own actions and inconsistent statements. After reviewing the record, we find that Bloom’s rights to due process and a fair trial were not violated.
EVIDENCE OF DEFENDANT’S THREAT TO ANOTHER
Bloom contends the trial court denied him his rights to due process and a fair trial in allowing Brenda Porter to testify to a threat Bloom had made to her approximately a week before Deanna’s death. Bloom argues the admission of the evidence was erroneous and irrelevant and that it violated K.S.A. 60-447 and K.S.A. 60-455.
The threat was first brought to the trial court’s attention when considering Bloom’s motion in limine. At that time, the trial judge denied the motion in limine as to the threat. During direct examination of Brenda, the prosecutor inquired whether there was a conversation with Bloom which scared her about a week before Deanna’s death. Out of the hearing of the jury, Bloom objected, claiming that admission of this testimony violated K.S.A. 60-455. The prosecutor then proffered testimony to show the relationship between Bloom and Deanna and Bloom’s jealousy of Deanna and argued the testimony showed motive and intent. The trial judge overruled Bloom’s objection.
Brenda testified that she had gone to Bloom’s house to see Deanna because Deanna was staying with Bloom. After no one answered the front door, Brenda went around to the back of the house and saw Bloom sitting on his porch. Bloom told Brenda that he had not seen Deanna and that she was with some guy named “Chuckie.” Bloom then asked Brenda how long Deanna had been seeing Chuckie. Brenda told Bloom that all she knew was that Deanna and Chuckie had gone to school together. Bloom told Brenda that Brenda had better not be lying to him and said, “Don’t you know if you are lying to me I will jump off this porch and take my toes and — take my toes around your neck and choke you to death.”
In order to preserve an issue for appeal, a party must make a timely and specific objection to the admission of the evidence. See State v. Sims, 265 Kan. 166, 174, 960 P.2d 1271 (1998); State v. Holbrook, 261 Kan. 635, 643, 932 P.2d 958 (1997); see also K.S.A. 60-404. The State points out that Bloom’s objection to this testimony at trial and during the hearing on the motion in limine was that it violated K.S.A. 60-455, which restricts the admission of other crimes and civil wrongs into evidence. It was not until the motion for new trial that Bloom asserted as additional grounds for exclusion of the evidence, relevancy of the evidence and K.S.A. 60-447, which limits the use of a character trait as proof of conduct.
Relevant evidence is evidence having any tendency in reason to prove a material fact. K.S.A. 60-401. The determination of relevancy is a matter of logic and experience, not a matter of law. Simon v. Simon, 260 Kan. 731, 741, 924 P.2d 1255 (1996). Except as otherwise provided by statute, all relevant evidence is admissible. K.S.A. 60-407(f).
Bloom argues that any threat made to Brenda was irrelevant to the issue in this case. Bloom claims the prosecutor’s real motive for introducing the evidence was to show Bloom’s propensity for violence and claims that the threat was not necessaiy to show Deanna’s relationship with Bloom. We disagree. Included within the threat was evidence of the relationship between Bloom and Deanna and Bloom’s feelings of jealousy. Jealousy is a current state of emotion. Evidence of a current state of emotion is not prohibited by K.S.A. 60-447. The evidence was also not prohibited by K.S.A. 60-455 because there was no crime or civil wrong. The testimony was relevant.
RIGHT TO CONFRONT WITNESSES
On direct examination, Brenda admitted a 1977 conviction for unemployment fraud. On cross-examination, the defense asked Brenda whether she had been charged with 26 counts of fraud in that case. The prosecutor objected, claiming that once a witness admits he or she has a conviction no further inquiry as to additional charges in the complaint is allowed. The trial judge upheld the prosecutor’s objection and prohibited inquiry into the 26 counts of fraud, but allowed Bloom’s attorney to question Brenda regarding the details of her conviction. Bloom alleges that prohibiting his questioning of Brenda on all 26 counts of fraud denied him» due process and the right to a fair trial and that his constitutional right to confront witnesses was denied.
Evidence of the conviction of a witness for a crime involving dishonesty or false statement is admissible to impair that witness’ credibility. K.S.A. 60-421. Obviously, Brenda’s conviction for unemployment fraud was admissible under K.S.A. 60-421 to impair her credibility. See State v. Marble, 21 Kan. App. 2d 509, 516, 901 P.2d 521 (1995).
Bloom asserts that the trial court unfairly limited his impeachment of Brenda by prohibiting him from questioning her regarding the 26 counts alleged on the complaint, and cites K.S.A. 60-421. This argument is without merit. Under K.S.A. 60-421, only convictions involving crimes of dishonesty are admissible to impeach a witness’ credibility. See State v. Johnson, 219 Kan. 847, Syl. ¶ 4, 549 P.2d 1370 (1976). Thus, because Brenda was not convicted on all 26 counts, the counts not pled to could not be used for impeachment under K.S.A. 60-421.
USE OF PHOTOGRAPH
Bloom contends he was denied his right to due process and a fair trial when the trial court allowed the prosecutor to exhibit to the jury a previously admitted photo of the crime scene during cross-examination of the defendant.
The photo was shown to the jury after the prosecutor had questioned Bloom about his admission that he had placed the knife back in Deanna’s hand and his testimony that he did not know that Deanna was dead at that time. Bloom had testified that when he placed the knife back into Deanna’s hand, her hand was not near her head. The prosecutor then showed Bloom a photo taken by police that showed the victim lying on the floor in a pool of blood, holding a knife in her right hand with the blade pointing toward her. This photo had been admitted into evidence on the first day of trial, 2 days earlier, but had not previously been shown to ¡the jury. The prosecutor asked Bloom:
“Q.: [Prosecutor]: Would you agree that State’s Exhibit Number 69 is a picture of Deanna Porter after she is dead?
“A.: [Bloom]: Evidently, yes, ma’am.
“Q.: Would you agree that picture State’s Exhibit 69 shows Deanna’s hand in close proximity to her head?
“A.: Yes, ma’am.
“Q.: And it shows the hand that you placed the knife in?
“A.: Yes, ma’am, and she moved. The cops said she was moving when he got there. “Q.: And it is your testimony that you did not know Deanna was dead?
“A.: I did not see any of those injuries.”
At that time, the prosecutor requested she be allowed to show the photo to the jury. Defense counsel objected, claiming that the photo had been taken hours after Bloom was last in his house and that under these circumstances it was improper to show Bloom was lying about what he saw before the picture was taken. Out of the hearing of the jury, defense counsel moved for a mistrial, claiming prosecutorial misconduct, alleging that the publishing of the photo at this time was to inflame the jury. The court denied the motion for mistrial, finding that there was no requirement that a photo had to be published at any particular time to be proper and that defense counsel could address his concerns through cross-examination. Defense counsel did not address this issue later.
The admission of photographic evidence, as well as the manner in which the photographic evidence is displayed to the jury, rests within the trial court’s sound discretion. State v. Deavers, 252 Kan. 149, 162, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993). At his motion for new trial, Bloom alleged that pubhshing the photo at this point in time was to prejudice the jury. The trial court denied a new trial, finding that Bloom was not prejudiced. Bloom claims the photo was improperly used impeach his testimony as to where the victim’s hand was when he placed the knife back in her hand and that the photo did not depict what he saw immediately after the shooting. The trial court did not abuse its discretion in allowing the photo to be viewed by the juiy during Bloom’s cross-examination.
USE OF A PLAIN-CLOTHES SECURITY GUARD
Bloom contends he was deprived of his rights to due process and a fair trial when the presence of a security guard prejudiced the jury into believing he was in custody and prone to violence. Bloom contends that upon Bloom being called to testify, a security guard sat next to him until defense counsel approached the bench and the trial judge instructed the security guard to move behind the bench and away from the jury’s view.
Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, is the principle that “one accused of a crime is entitled to have guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 56 L. Ed. 2d 468, 98 S. Ct. 1930 (1978). Whenever a courtroom arrangement is challenged as being inherently prejudicial to a criminal defendant, the question is not whether jurors actually articulate a consciousness of some prejudicial effect, but rather whether there exists an unacceptable risk of impermissible factors influencing the jury. State v. Davidson, 264 Kan. 44, 51, 954 P.2d 702 (1998).
The record of trial contained no mention of this incident. The issue was first raised in Bloom’s motion for new trial. In denying Bloom’s motion for new trial on this ground, the trial judge noted that at all times the defendant and the security guards were in suits and that there was nothing to indicate Bloom was in custody. The judge noted that Bloom was never handcuffed in the presence of jurors, nor was he, to the judge’s knowledge, ever escorted in the presence of the jurors. The judge noted that the security guard was moved several feet away from Bloom when this was brought to the court’s attention. The judge commended the Department of Corrections for doing such a good job and found that Bloom’s due process rights were not violated.
Bloom did not object to the presence of the security guard, and the record does not contain any discussion of the matter. A defendant bears the burden of furnishing a record that affirmatively shows prejudicial error occurred. Absent such a record, an appellate court presumes the action of the trial court was proper. State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997). Assertions in appellate briefs are not sufficient to satisfy inadequacies in the record on appeal. Hill v. Farm Bureau Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998). Thus, this issue was not preserved for appeal.
DENIAL OF DUE PROCESS AND SPEEDY TRIAL
Bloom contends his constitutional and statutory rights to due process and speedy trial were violated. Specifically, Bloom alleges the violation arises as the result of the procedures under the local court rules.
K.S.A. 22-3402(1) states:
“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 . . . .”
In this case, Bloom was arraigned on December 16, 1998. On March 8, 1999, less that 90 days later, Bloom appeared before the district court on a joint motion for continuance. The district court judge noted that Bloom was still in jail at that time, and that he was entitled to be brought to trial within 90 days. The judge inquired as to whether Bloom would waive his right to speedy trial and allow trial to be set “down the road aways.” Bloom agreed to waive his right to speedy trial. The reason for the continuance was that Bloom’s previous counsel had left the public defender’s office and Bloom’s new counsel needed additional time to prepare for trial. Pursuant to the request, trial was reset for May 24, 1999.
On May 24, 1999, Bloom appeared before the district court on defense counsel’s motion for continuance. Bloom stated to the court that he was unhappy with his court-appointed counsel. Bloom indicated he was not requesting counsel be removed, but that he (Bloom) was “just trying to put a fire under her tail.” The judge stated:
“THE COURT: And I think that you and all of us want to give Ms. Donovan time to prepare for the trial, your trial, so that she can be in a position to defend you fully, if that’s your decision.”
“DEFENDANT BLOOM: Yes, ma’am.”
Trial was reset for June 21, 1999.
On June 9, 1999, defense counsel once again filed a motion for continuance. The motion and order for continuance noted that the continuance had been requested because the defendant had recently added a new attorney, discovery was not yet completed, and the coroner would be on vacation until mid-August. The motion and order for continuance noted that Bloom had previously waived speedy trial rights. Trial was rescheduled for August 23, 1999.
On July 15, 1999, Bloom filed a pro se motion for new counsel. On July 19, 1999, Bloom’s new counsel filed a motion for continuance. On August 13, 1999, Bloom’s counsel filed a motion to stay the criminal proceedings and a motion to dismiss, alleging Bloom’s statutory right to speedy trial had been violated. Bloom was denied habeas corpus relief after an August 16,1999 hearing. The district court held that all continuances up until that time were at the request of the defense and that there were no grounds for granting relief. The district court subsequently denied Bloom’s motion to dismiss his criminal charge on August 23, 1999. The judge then granted the defendant’s request for an another continuance and rescheduled trial for November 8,1999. Defense counsel noted at that time that they were waiving speedy trial rights “from here on.” Additional continuances were also granted at the request of the defense on October 28, 1999, January 7, 2000, and February 24, 2000. Bloom is not appealing these further delays.
At the hearing on the motion to dismiss and on appeal, Bloom refers to a local district court rule that requires a motion for con tínuance to contain a signed written waiver of speedy trial rights. Thus, Bloom maintains that his failure to waive speedy trial rights in writing, as required by the local court rules, deprives him of due process of law and a fair trial. Both parties fail, however, to provide the text of this rule on appeal. It appears that the rule Bloom is referring to is Shawnee County District Court Rule 3.319, which requires any party requesting a continuance to complete a “Request for Continuance” form. If requesting continuance of a trial setting, the form requires the defendant’s written waiver of speedy trial rights. DCR 3.319.
Bloom claims his March 8, 1999, waiver of speedy trial rights was not an indefinite waiver, and that the continuances granted on May 24, 1999, and June 9, 1999, were in violation of his rights to speedy trial and due process. The June 9, 1999, motion and order for continuance merely noted that Bloom had already waived his right to speedy trial. The record on appeal does not appear to contain a written motion and order for the May 24, 1999, continuance. Thus, neither of these continuances contained a signed waiver of speedy trial rights. It must also be noted that the March 8, 1999, waiver of speedy trial rights, which Bloom does not contest, also fails to contain a written waiver of his speedy trial rights.
District courts are authorized to make rules that are necessary for the administration of affairs of the district court, as long as they do not conflict with the Supreme Court’s rules and regulations. Rule 105 (2001 Kan. S. Ct. R. Annot. 152). This does not necessarily mean, however, that the failure to follow these rules would result in a violation of a defendant’s due process rights. In order to establish a procedural due process violation, a claimant must establish that he or she was denied a specific procedural protection to which he or she was entitled. In reviewing the claim, the court must determine whether there is a protected liberty or property interest involved, and must then determine the nature and extent of the process due. State v. Wilkinson, 269 Kan. 603, 608-09, 9 P.3d 1 (2000). A local court rule requiring a written waiver of a defendant’s right to speedy trial does not create a liberty or property interest.
Bloom also claims his statutory rights to speedy trial were violated. A defendant may waive the statutory right to speedy trial by requesting or acquiescing in the grant of a continuance. In calculating speedy trial violations, defense counsel’s actions are attributable to the defendant. State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997); State v. Bafford, 255 Kan. 888, 892, 879 P.2d 613 (1994).
Here, Bloom personally acquiesced to the continuance granted on May 24, 1999, thus it cannot be said this continuance violated his right to a speedy trial. Although there is no indication Bloom affirmatively consented to the continuance granted on June 9, 1999, the continuance was appropriately charged to Bloom because his counsel requested it. See Bafford, 255 Kan. at 893 (defendant’s claim that he did not acquiesce to his defense counsel’s request for a continuance did not prohibit this time from being charged to the defendant in calculating speedy trial; counsel need not obtain defendant’s permission prior to moving for a continuance).
Additionally, it must be noted that, contrary to Bloom’s contentions, Bloom’s waiver of speedy trial on March 8, 1999, was not limited in any manner. Thus, the initial waiver, which Bloom does not contend was invalid, continued, and no additional waiver was required. See State v. Smallwood, 264 Kan. 69, 74, 955 P.2d 1209 (1998) (defendant’s assertion that waiver of speedy trial was limited to 180-day period failed because the record established the waiver was unconditional). Bloom did not limit his waiver; for Bloom to subsequently allege a speedy trial rights violation, Bloom was required to revoke his waiver.
Bloom also contends his constitutional right to a speedy trial was violated, although neither party briefed the issue. In State v. Otero, 210 Kan. 530, 533-34, 502 P.2d 763 (1972), this court adopted the nonexclusive four-factor case-by-case approach set forth in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), for determining whether a defendant’s constitutional right to speedy trial has been violated. Smallwood, 264 Kan. at 75. “The factors are: length of delay, reason for the delay, the defendant’s assertion of his or her right, and prejudice to the defendant.” 264 Kan. at 75. If the length of the delay is not presumptively preju dicial, the court need not consider the other factors of the test. Barker, 407 U.S. at 530; Smallwood, 264 Kan. at 75; State v. Goss, 245 Kan. 189, 193, 777 P.2d 781 (1989). “Three factors which may demonstrate the defendant has been prejudiced by a delay of trial are oppressive pretrial incarceration; anxiety and concern of the accused; and, most important, impairment of the defense. State v. Vaughn, 254 Kan. 191, 196, 865 P.2d 207 (1993).” Smallwood, 264 Kan. at 76.
Bloom was arraigned on December 16, 1998. The jury trial began on June 26, 2000. The total time between arraignment and trial was a little over 18 months. During that time, Bloom only contends that he did not agree to the delay that occurred between May 24, 1999, and July 19, 1999, a period of less than 2 months. Bloom has failed to demonstrate any prejudice that occurred as a result of the delay. Thus, there was no violation of Bloom’s constitutional right to a speedy trial.
ENDORSE AN ADDITIONAL WITNESS
Bloom contends that the trial court erred in endorsing and allowing Michael VanStratton to testify in place of Mary Koch and in allowing the State to violate the pretrial order setting a deadline for the filing of motions.
The prosecution is required to endorse the names of all known witnesses upon the complaint, information, and indictment at the time of filing and may be permitted to endorse additional witnesses at the time prescribed by court rule or otherwise. K.S.A. 2001 Supp. 22-3201(g). K.S.A. 2001 Supp. 22-3201(g) has been construed as conferring broad discretionary power upon the trial court to allow late endorsement of witnesses. State v. Green, 252 Kan. 548, 553, 847 P.2d 1208 (1993) (formerly K.S.A. 22-3201[6]). With regard to the late endorsement of State’s witnesses, the question is whether the defendant’s rights have been prejudiced. State v. Coleman, 253 Kan. 335, 349, 856 P.2d 121 (1993). Factors in making this determination include whether the defendant was surprised and whether the testimony was critical. 253 Kan. at 349 (citing State v. Bright, 229 Kan. 184, 192, 623 P.2d 917 [1981]). Absent abuse of discretion, endorsement of additional witnesses will not serve as basis for reversal. Green, 252 Kan. at 554; State v. Costa, 228 Kan. 308, 315, 613 P.2d 1359 (1980).
On June 20, 1999, 6 days prior to trial, the State requested a continuance because a key witness, Mary Koch, would be out of state at the time. The motion was denied. The following day, the State filed a motion to endorse VanStratton as an additional witness. At the pretrial conference on June 14,2000, the district judge had set June 19, 2000, as the deadline for filing additional motions. Just prior to trial, Bloom requested the trial court deny the State’s late motion to endorse VanStratton. The prosecutor asserted that VanStratton was for all essential purposes a substitute witness and that he would testify to essentially the same thing as Koch would have testified. Bloom objected to the substitution of witnesses, contending that he had spent time preparing for Koch’s testimony by looking into;prior cases in which she had testified, that VanStratton did not prepare the blood spatter analysis report, and that under these circumstances he would suffer prejudice. The prosecutor informed the court that VanStratton had participated in preparing the report and had reviewed tire final report. The court allowed the State to endorse the witness and reserved final ruling on his ability to testify.
When called to testify, VanStratton testified that he personally reviewed items in the case, that he had participated in preparing the blood spatter analysis report with Mary Koch, the author of the report, and that he had “signed off’ on the report. At this point defense counsel was permitted to voir dire the witness. During voir dire, VanStratton indicated that some of report was his and some was Koch’s. After voir dire, defense counsel noted his previous objection. The trial court allowed VanStratton to testify to the specific conclusions that were reached based upon the blood spatter. After hearing VanStratton’s testimony, the trial court admitted the blood spatter analysis report over defense counsel’s objection.
The trial court has the authority to modify a pretrial order if necessaiy to prevent manifest injustice. Coleman, 253 Kan. at 347. In this case, there is no evidence the State exercised bad faith in moving to endorse VanStratton just a few days before trial. In fact, the State had first asked for a continuance after discovering Koch would be unavailable. Koch was a key witness for the State because her testimony would be that the shooter s position was in the living room and that the victim was neither sitting nor standing in a full upright position at the time she was shot. This testimony contradicted what Bloom had stated during his police interview.
The purpose of the endorsement requirement is to prevent surprise to the defendant and provide the defendant an opportunity to interview and examine the witnesses in advance of trial. Green, 252 Kan. at 553. In this case there is no evidence of prejudice suffered by Bloom as a result of the late endorsement. Bloom had 4 or 5 days prior to trial in which either to request a continuance or interview and examine the witness the State sought to endorse. We find no unfair surprise or prejudice in allowing the State to endorse this witness.
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The opinion of the court was delivered by
Abbott, J.:
Appellant Wabaunsee County challenges the decision of the Kansas Board of Tax Appeals (BOTA) granting Merle and Nora Lietz, d/b/a Lietz Construction Company (Lietz Construction), exemptions from ad valorem property tax on machinery and equipment pursuant to K.S.A. 2001 Supp. 79-201j(a). At issue is whether Lietz Construction’s bulldozers, dirt scrapers, a road grader, an excavator, and the trailers that carry them qualify as “farm machinery and equipment . . . actually and regularly used in any farming or ranching operation,” within the meaning of K.S.A. 2001 Supp. 79-201j(a), and, if so, whether the statute is unconstitutional. The appellant invoked the jurisdiction of the Court of Appeals pursuant to K.S.A. 2001 Supp. 74-2426(c)(3). The matter was transferred to this court on its own motion pursuant to K.S.A. 2043018(c).
In February 2000, Merle and Nora Lietz filed an application for a tax exemption with BOTA. The initial request for exemption was filed with the county appraiser where the property was principally located, Wabaunsee County, pursuant to K.S.A. 1998 Supp. 79-213.
Lietz Construction indicated that “[a]ll equipment is used in our business as a soil conservation contractor doing work for farmers and ranchers as well as any other dirt work.” They also indicated that no other individuals or organizations used the property.
Lietz Construction included within the application a remand order dated June 8, 1999, from BOTA entitled “In the Matter of the Application of Kramer, Douglas T. for Exemption from Ad Valorem Taxation in Jefferson County, Kansas.” Originally, BOTA had denied exemption to Kramer on a dozer, dirt scraper, and ripper, pursuant to K.S.A. 79-201j, because the applicant had indicated that he also used the equipment for commercial purposes. In its order of June 9, 1999, however, BOTA complied with the judicial decision of the Shawnee County District Court and granted exemption.
Robert Miller, Wabaunsee County Appraiser, reviewed the application as required by K.S.A. 2001 Supp. 79-213. Miller found the facts as stated by the applicant to be true, but recommended that no relief be granted because the property was also used for commercial purposes. Miller did not request a hearing on the matter.
On August 17, 2000, David Patton, chairman of BOTA, sought further information from Lietz Construction concerning the use of the equipment. In a letter dated September 13, Lietz Construction responded that it was “a soil conservation contractor and [we] use our equipment 75-80 percent of the time for that purpose doing work for area farmers.” In addition, it listed uses for the equipment:
“DOZERS, SCRAPERS .... Terraces (new and rebuild) [sic], Grassed waterways (new and rebuilt), Stockwater ponds (new & clean outs) which include pipe installation; Erosion control dams; Prepare pad sites for farm equipment sheds; work on livestock facilities (corrals, etc.); farm crossings; clean drainage ditches; livestock lagoons; fence rows . . . tree and brush removal
“GALION GRADER......Level terraces and waterways
“Non-soil conservation uses of machinery:
“Build and grade private roads, site preparation for houses, towers, etc. a few basements, household lagoons, grade parking areas (small-med.) etc.
“All other equipment listed is used in the business in the same proportion. The 1965 Luttig trailer and 1985 Eager Beaver trailer are used in hauling our equipment from job to job, while the 1989 AAA trailer is used to haul pipe for ponds, etc. needed for the job.”
BOTA notified Lietz Construction and Wabaunsee County that a hearing would be set and asked Lietz Construction to come prepared to answer questions concerning the uses of the property and whether the applicant was registered with the farm services office.
A hearing on the matter was conducted on January 10, 2001, a the Docking State Office Building in Topeka. Merle and Nora Lietz appeared without counsel to represent themselves and Lietz Construction.
Wabaunsee County submitted one exhibit, a conditional use permit issued by the Wabaunsee County Commissioners allowing Merle and Nora Lietz to operate a rock quarry on their properly. Lietz Construction also submitted one exhibit consisting of photographs of the equipment and a Kansas Land Improvement Contractor Association newsletter entitled “Kansas Board of Tax Appeals Grants Property Tax Exemption to KLICA Member.”
Counsel for Wabaunsee County conducted an examination of Merle Lietz at the BOTA hearing. When questioned about jobs performed other than employment on farms constructing terraces and other conservation work, Lietz responded that about 20 percent of Lietz Construction jobs were non-farm related. In regard to the rock quarry, Lietz testified that another party took rock from their property, but their equipment was only used to uncover the rock and to do the reclamation work after quarrying was finished. Lietz later reemphasized that 80 percent of time their equipment was used solely for the soil conservation reclamation and improve ment work and that the work at the quarry was not included in that 80 percent. Further, Lietz stated that since he had been in business there was not a year where his equipment was used less than 50 percent of the time for soil conservation or land improvement work.
Counsel for Wabaunsee County argued that the statutory term farm machinery and equipment should not be construed to include construction equipment simply because that equipment was used for constructing terraces on farms. According to Wabaunsee County, using that analysis could lead an accountant preparing tax returns exclusively for farmers to claim that his or her computer qualified as farm equipment. Wabaunsee County characterized the work being done as construction dirt work, not agriculture.
In response, Nora Lietz stated:
“I don’t think we would be here . . . if we were using our equipment to contract our road construction. Our point is that we’re using it for agriculture, for the benefit of agricultural purposes. And this — it’s my understanding that the Attorney General has ruled that your property does not have to be used exclusively for farming operations.”
BOTA issued its findings and decision in an order dated February 20, 2001. The order reads, in pertinent part:
“7. The Board finds that the subject property is actually and regularly used as farm equipment. The Board concludes that the applicant satisfies the conditions enumerated in K.S.A. 79-201j(a), and amendments thereto.
“8. The applicant has also requested an exemption for the trailer that hauls the various dozers and scrapers. The Board finds that because the dozers and scrapers that the trailer hauls is [sic] farm equipment as defined in K.S.A. 79-201(j), and amendments thereto, the trailer that hauls the dozers and scrapers can also qualify for an exemption pursuant to K.S.A. 79-201(j), and amendments thereto.
“9. The applicant should note that in the event its exempt property ceases to be used for exempt purposes, it must report that fact to the appropriate county appraiser within 30 days thereafter. See K.S.A. 79-214, and amendments thereto.
“IT IS THEREFORE, BY THE BOARD OF TAX APPEALS OF THE STATE OF KANSAS, CONSIDERED AND ORDERED that the application requesting an exemption from ad valorem taxation be granted from January 1, 2000, and each succeeding year, so long as the property continues to be used for exempt purposes. IT IS FURTHER ORDERED that any refund due and owing the applicant be made pursuant to K.S.A. 79-213(k), and amendments thereto, which limits the refund to a period not to exceed three years.”
Wabaunsee County petitioned BOTA to reconsider its decision, but BOTA denied the motion on March 13, 2001, finding that no new evidence had been presented to convince it that the original order should be modified or that reconsideration should be granted. On April 12, 2001, Wabaunsee County filed its direct appeal of BOTA’s order pursuant to K.S.A. 2001 Supp. 74-2426(c)(3), requesting that the Court of Appeals reverse BOTA’s findings of fact and conclusions of law. Following a K.S.A. 20-3018(c) transfer, the matter is before this court and is ripe for review.
On appeal, Wabaunsee County challenges BOTA’s legal determination that earth-moving equipment such as bulldozers, scrapers, road graders, and excavators used in soil conservation work for farmers may qualify for ad valorem tax exemption under K.S.A. 2001 Supp. 79-201j(a).
In an appeal from an order of BOTA, K.S.A. 77-621 controls an appellate court’s scope of review. See K.S.A. 2001 Supp. 74-2426(c) (noting that BOTA’s decisions are subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions).
Within The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-621(a)(l) provides that unless “this act or another statute provides otherwise . . . [t]he burden of proving the invalidity of agency action is on the party asserting invalidity.” Additionally, K.S.A. 77-621(c) specifies that this court may grant relief from an order of BOTA only if we determine that:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied die law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(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.”
Under K.S.A. 77-621, the standard of review of a BOTA decision is “somewhat broader than the traditional three-pronged scope of review as set forth in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968).” In re Tax Appeal of A.M. Castle & Co., 245 Kan. 739, 741, 783 P.2d 1296 (1989).
BOTA is considered the paramount, lawfully constituted taxing authority in Kansas. Wirt v. Esrey, 233 Kan. 300, 314, 662 P.2d 1238 (1983). “The party challenging the validity of BOTA’s order bears the burden of proving the order’s invalidity. K.S.A. 77-621(a)(1).” In re Tax Appeal of the Boeing Co., 261 Kan. 508, Syl. ¶ 4, 930 P.2d 1366 (1997).
BOTA’s decision involved the legal interpretation of K.S.A. 2001 Supp. 79-201j. That statute states, in pertinent part:
“The following described property, to the extent specified by this section, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“(a) All farm machinery and equipment. The term ‘farm machinery and equipment’ means that personal property actually and regularly used in any farming or ranching operation. . . . The term ‘farming or ranching operation’ shall include the operation of a feedlot, the performing of farm or ranch work for hire and the planting, cultivating and harvesting of nursery or greenhouse products, or both, for sale or resale. The term ‘farm machinery and equipment’ shall not include any passenger vehicle, truck, truck tractor, trailer, semitrailer or pole trailer, other than a farm trailer, as the terms are defined by K.S.A. 8-126 and amendments thereto.” (Emphasis added.)
Here, BOTA determined “that the subject property is actually and regularly used as farm equipment.” On appeal, Wabaunsee County challenges BOTA’s legal determination as erroneous.
“BOTA is a specialized agency that exists to decide taxation issues. BOTA’s decisions should be given great credence and deference when it is acting in its area of expertise. However, if we find that BOTA’s interpretation is erroneous as a matter of law, we should take corrective steps.” Boeing, 261 Kan. at 508, Syl. ¶ 3.
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.” West v. Collins, 251 Kan. 657, Syl. ¶ 3, 840 P.2d 435 (1992).
“ ‘In determining legislative intent, courts are not limited to consideration of the language used in statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act.’ [Citation omitted.]” 251 Kan. at 666.
History of farm equipment tax exemption.
“Adopted at the Wyandotte Constitutional Convention in 1859, the original version of article 11, section 1 provided for ‘a uniform and equal rate of taxation.’ Between 1859 and 1974, this provision was amended three times, but all versions retained the ‘uniform and equal rate of assessment and taxation’ language.” Kansas Property Classification and Reappraisal: The 1986 Constitutional Amendment and Statutory Modifications, 29 Washburn L.T. 26, 27-29 (1989).
In 1982, the legislature passed H.B. 2425, creating the statutoiy tax exemption for farm machinery and equipment, K.S.A. 79~201j (Ensley 1984). See L. 1982, ch. 390, sec. 3. The new statute provided that all “farm machineiy and equipment” was exempt from property or ad valorem taxes levied in Kansas. L. 1982, ch. 390, sec. 3. The provision further defined farm machinery and equipment to mean “that personal property actually and regularly used exclusively in farming or ranching operations.” L. 1982, ch. 390, sec, 3. Passenger vehicles, trucks, and trailers were not included in the definition of exempt equipment, unless designed or used primarily as a farm vehicle as provided in K.S.A. 8-126. See L. 1982, ch. 390, sec. 3; L. 1982, ch. 36, sec. 2.
The legislature set forth the purpose of the statutory farm machinery and equipment tax exemption in K.S.A. 79-201L That statute reads, in pertinent part:
“It is the purpose of K.S.A. 79-201j of this act to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth and development of agricultural endeavors within the state. Agriculture, as conducted in farming and ranching operations throughout the state, is the primary basis of the Kansas economy. Communities, regions, and the state as a whole are materially dependent upon agricultural endeavors and derive substantial financial benefit from the success of Kansas agriculture. Farming and ranching operations require the investment of large sums of capital for the purpose of providing the land on which the operations are conducted, and the farm machinery and equipment necessary to satisfactorily carry out such endeavors. Because of agriculture’s unique requirements of substantial capital investment, the property tax burden becomes a deterrent to such investment and, in some instances, and encouragement to farm and ranch abandonment. Kansas, and all its citizens, will benefit from any improvement in the economic environment of Kansas agriculture. The exemption from the ad valorem property tax of farm machinery and equipment actually and regularly used in farming and ranching operations will constitute an incentive to agriculture and will improve the general economy of the state. Considering this state’s heavy reliance on agriculture, the enhancement of agricultural endeavors is deemed to be a public purpose which will promote the general welfare of the state and be for the benefit of the people of the state.”
In Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 694 P.2d 462 (1985), this court construed the language of K.S.A. 79-201j (Ensley 1984), “used exclusively in farming and ranching operations,” and found an implied intent by the legislature to limit tax exemption stricdy to those who actually farm or ranch. See 236 Kan. at 637. There, this court held that “property owned by a non-tax-exempt entity (custom cutters) which provides a service for profit to a qualifying tax-exempt entity is not being used exclusively for tax-exempt purposes and is subject to ad valorem and properly taxes.” 236 Kan. at 640.
In a companion case, T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 693 P.2d 1187 (1985), this court held that machinery and equipment used in commercial feedlot operations did not qualify as personal property used exclusively in farming or ranching operations under K.S.A. 79-201j (Ensley 1984). 236 Kan. at 649. In both the Farmers Co-op and T-Bone Feeders, Inc. decisions, this court focused on the statutory phrase “used exclusively” in denying tax exemption to tire appellants. See Farmers Co-op, 236 Kan. at 636-37; T-Bone Feeders, Inc., 236 Kan. at 646. Thus, the statute was narrowly interpreted to impose an exclusive use requirement.
Due to inflation and inequities in property appraisal in the 1980s, many disputed whether the existing property tax system was truly uniform and equal as required by article 11, § 1 of the Kansas Constitution. See 29 Washburn L.J. at 31-33. The legislature sought to resolve property taxation problems through sweeping re form. 29 Washburn L.J. at 34. As part of these reform measures, the legislature drafted an amendment to article 11, § 1 of the Kansas Constitution creating a new system of property tax classification. 29 Washburn L.J. at 26.
“Witnesses before the House and Senate Committees on Assessment and Taxation expressed their opinions and made recommendations on property tax reform. Before presenting the proposed amendment to article 11, section 1 to the voters, the legislature heard testimony concerning assessment and taxation of farm machinery and equipment . . . .” 29 Washburn L.J. at 39.
“A Kansas Farm Bureau representative requested that farm machinery be constitutionally exempt from taxation, as it is in 27 other states. [Citation omitted.] The Kansas Livestock Association (KLA) also endorsed this proposal, pointing out that personal property was ‘not a good tax base because it’s not a good measure of wealth or of the ability of the taxpayer to pay.’ [Citation omitted.]” 29 Washburn L.J. at 39 n.60.
In 1986, Kansas voters approved the amendment to article 11, § 1.29 Washburn L.J. at 26. Within that constitutional amendment, farm machinery and equipment, livestock, and business inventories were exempted from taxation. See 29 Washburn L. J. at 43. Article 11, § 1(b)(2) stated:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchant’s and manufacturer’s inventories and livestock and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
In 1992, Kansas voters approved another amendment to article 11, § 1 of the Kansas Constitution. The language of the new subsection (b) did not substantially change in regard to the farm machinery and equipment exemption, however. The 1992 version of article 11, § 1(b) exempts “[a]ll property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchants’ and manufacturers’ inventories . . . livestock, and all household goods and personal effects not used for the production of income.” L. 1992, ch. 342, sec. 1.
In addition, the legislature changed the provisions of K.S.A. 79-201j in 1992. The new statute contained provisions exempting aquaculture and Christmas tree machineiy and equipment, and enlarged the statutory definition of a farming or ranching operation. “The term ‘farming or ranching operation’ shall include the performing of farm or ranch work for hire.” See L. 1992, ch. 102, sec. 4. The statutory definition of “farm machinery and equipment” remained “that personal property actually and regularly used exclusively in any farming or ranching operation.” L. 1992, ch. 102, sec. 4.
Since 1992, article 11, § 1 of the Kansas Constitution has remained unchanged. However, the legislature has amended K.S.A. 79-201j three times. See L. 1997, ch. 122, sec. 1; L. 1999, ch. 126, sec. 2; L. 2000, ch. 139, sec. 4. In 1999, tax-exempt status was granted to machinery and equipment for the purpose of providing fuel for irrigating agricultural land. L. 1999, ch. 126, sec. 2. In 2000, K.S.A. 79-201j(a) was again enlarged to grant tax-exempt status to any greenhouse not permanently affixed to real estate used in a farming or ranching operation.
For the purpose of this appeal, the most significant statutory amendment occurred in 1997, when the legislature removed the word “exclusively” from K.S.A. 79-201j(a). Following that amendment, the statute’s definition of tax-exempt farm machinery and equipment changed to “that personal property actually and regularly used in any farming or ranching operation. The term ‘farming or ranching operation’ shall include the operation of a feedlot and the performing of farm or ranch work for hire.” L. 1997, ch. 122, sec. 1.
Article 11, § 1(b) of the Kansas Constitution.
Wabaunsee County’s appeal points to the differences in the wording of the constitutional and statutory exemption for farm machinery and equipment. Wabaunsee County asserts that because the legislature drafted the farm equipment and machinery tax exemption in article 11, §1 following our 1985 Farmers Co-op and T-Bone Feeders, Inc. decisions and avers that since it made no substantive alterations to its language, the phrase “farm machinery and equipment” in article 11, § 1(b) must be construed as having the same definition this court gave to K.S.A. 79-201j(a) in 1985.
In article 11, the modifying term “used exclusively” appears before a list of specified purposes. However, the phrase “used exclusively” does not necessarily modify the remaining items in article 11, § 1(b), i.e., farm machinery and equipment, inventories, livestock, household goods, and personal effects.
The Kansas Attorney General has previously reached the same conclusion. See Att’y Gen. Op. No. 97-11. In a formal opinion, the Attorney General wrote: “While the Constitution establishes an exclusive use requirement for property used for government, literary, educational, scientific, religious, benevolent and charitable purposes, it contains no such requirement for farm machinery and equipment.” While an opinion of the Attorney General is neither conclusive nor binding on this court, an attorney general opinion may be persuasive authority. U.S.D. No. 501 v. Baker, 269 Kan. 238, 249, 6 P.3d 848 (2000).
This court interprets article 11, § 1(b) of the Kansas Constitution to simply exempt all “farm machinery and equipment” with no exclusive use requirement. The language employed in the constitutional amendment is very different from the language of the statute construed by this court in the Farmers Co-op and T-Bone Feeders, Inc. decisions. Therefore, Wabaunsee County’s assertion that the Farmers Co-op and T-Bone Feeders, Inc. decisions control the interpretation of article 11, § 1(b) fails.
Constitution and statute.
Wabaunsee County also asserts that the term “farm machinery and equipment” must have the same meaning for K.S.A. 2001 Supp. 201j(a) as for article 11, § 1 of the Kansas Constitution. Wabaunsee County contends that the adoption of the constitutional amendment containing the phrase “farm machinery and equipment” some 10 months following this court’s interpretation of the same phrase in Farmers Co-op and T-Bone Feeders, Inc. supports the conclusion that the constitutional phrase has a meaning consistent with this court’s 1985 interpretation.
Prior case law describes the distinction between constitutions and statutes:
“The essential difference between a constitution and a statute is that a constitution usually states general principles or policies, and establishes a foundation of law and government, whereas a statute must provide the details of the subject of the statute. A constitution, unlike a statute, is intended not merely to meet existing conditions, but to govern future contingencies.” State ex rel. Stephan v. Finney, 254 Kan. 632, Syl. ¶ 2, 867 P.2d 1034 (1994).
“It is fundamental that the written constitution is paramount law since it emanates directly from the people.” State ex rel. Braun v. A Tract of Land, 251 Kan. 685, Syl. ¶ 1, 840 P.2d 453 (1992). “A statute and pertinent constitutional provisions must be construed together with a view to malee effective the legislative intent rather than to defeat it.” Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 (1939).
We have previously stated that portions of the 1986 constitutional amendment to article 11, § 1 of the Kansas Constitution created tax exemptions that were self-executing. Colorado Interstate Gas Co. v. Board of Morton County Comm’rs, 247 Kan. 654, 659, 802 P.2d 584 (1990).
“ ‘The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution and further the exercise of constitutional right to make it more available. Thus, even in the case of a constitutional provision which is self-executing, the legislature may enact legislation to facilitate the exercise of the powers directly granted by the constitution; legislation may be enacted to facilitate the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right.
“ ‘It is clear that legislation which would defeat or even restrict a self-executing mandate of the constitution is beyond the power of the legislature.’ ” 247 Kan. at 659.
However, as Wabaunsee County concedes, the legislature has the general power to confer additional tax exemptions, or exemptions broader in scope through the enactment of legislation, unless constitutionally prohibited from doing so. See In re Protest of Strayer, 239 Kan. 136, 141, 716 P.2d 588 (1986). Wabaunsee County’s argument that article 11, § 1(b) should be interpreted in keeping with the Farmers Co-op and T-Bone Feeders, Inc. decisions seemingly ignores the different language employed in the amendment to the Kansas Constitution, as well as the enactment of K.S.A. 79-20lj in 1992. In addition, it would seem untenable to employ the definition from Farmers Co-op when the legislature has the power to change the statute to expand the exemption. We find Wabaunsee County’s contention to be without merit.
Earth-moving equipment and K.S.A. 2001 Supp. 79-201j(a).
Wabaunsee County challenges BOTA’s legal determination that earth-moving equipment such as bulldozers, scrapers, road graders, and excavators used in soil conservation work for farmers may qualify for ad valorem tax exemption under K.S.A. 2001 Supp. 79-201j(a) and the Kansas Constitution. Under K.S.A. 77-621(c)(4), this court may grant relief from BOTA’s order upon a determination that the agency erroneously interpreted the law. As discussed above, the Kansas Constitution simply exempts all “farm machinery and equipment” with no exclusive use requirement.
K.S.A. 2001 Supp. 79-20lj exempts “(a) All farm machinery and equipment. The term ‘farm machinery and equipment’ means that personal' property actually and regularly used in any farming or ranching operation. . . . The term ‘farming or, ranching operation’ shall include the operation of a feedlot and the performing of farm or ranch work for hire.”
Wabaunsee County’s argument appears to concede that a party’s performance of typical or traditional farm or ranch work for hire would bring that party’s equipment within the exemption provided by the statute. Wabaunsee County does not contest BOTA’s determination that the performance of farm work for hire is included in the statute. Thus, we may narrow our inquiry. The primary issue presented is whether soil conservation reclamation and improvement work conducted on a farm or ranch is “farm or ranch work.”
In construing an exemption to taxation, well-recognized rules of construction apply.
“ ‘Taxation is the rule, and exemption from taxation the exception under the Kansas Constitution and statutes. [Citation omitted.] Constitutional and statutoiyprovisions exempting property from taxation are to be strictly construed against the one claiming exemption. [Citation omitted.] Where the language of a statute, in particular, is relied upon as creating an exemption from taxation, it must be strictly construed against the party claiming the exemption .... [Citation omitted.] Strict construction, however, does not warrant unreasonable construction. [Citations omitted.]’ ” Board of Sedgwick County Comm’rs v. Action Rent to Own, Inc., 266 Kan. 293, 301, 969 P.2d 844 (1998) (citing In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 [1994]).
To aid in our interpretation the terms “farming or ranching operation,” and “farm or ranch work” found in K.S.A. 2001 Supp. 79-201j(a), we will examine other statutes and the ordinary meaning of “farming.” K.S.A. 79-3606(t) states that “[farming or ranching shall include the operation of a feedlot and farm and ranch work for hire and the operation of a nursery.” K.S.A. 17-5903(h) states that “ ‘Harming’ means the cultivation of land for the production of agricultural crops, the raising of poultry, the production of eggs, the production of milk, the production of fruit or other horticultural crops, grazing or the production of livestock.” A farmer’s cultivation of land generally necessitates work to prepare the land for crops.
Webster’s New Collegiate Dictionaiy412 (1981) defines farming as “the practice of agriculture.” Agriculture is defined as “the science or art of cultivating the soil, producing crops, and raising livestock and in varying degrees the preparation of these products for man’s use and their disposal (as by marketing).” Webster’s at 24. Here, we must determine whether soil conservation work on a farm fits within the plain meaning of the term “farming.”
The legislature has declared that
“it is necessary that land-use practices contributing to soil wastage and soil erosion be discouraged and discontinued, and appropriate soil-conserving land-use practices and structural works of improvement be adopted and carried out; that among the procedures necessary for widespread adoption, are the carrying on of engineering operations such as the construction of terraces, terrace outlets, check-dams, dikes, ponds, ditches, detention dams . . . .” K.S.A. 2-1902 C.
“Soil erosion represents the loss of valuable soil and thus can threaten the long-term sustainability of agriculture in a particular area.
“The most significant soil conservation provisions since 1935 were included in the Food Security Act of 1985. The conservation provisions in that legislation were intended to preserve cropland and protect the environment at the same time. The Act gave farmers three choices for highly erodible lands. They could enroll that land in a conservation reserve program, removing it from production for 10 years in return for annual rental payments from the federal government. They could continue cultivating it, but only with an approved conservation plan. If they had not cultivated it before 1985, they could begin cultivation only with an approved conservation plan. Without that plan, they were ineligible for most federal farm benefits and commodity programs.” Dernbach, U.S. Adherence to its Agenda 21 Commitments: a Five-year Review, 27 E.L.R. 10504 (1997).
We conclude that soil conservation measures are generally understood to be an integral part of the cultivation of the soil in current farming practices. Therefore, we do not find that BOTA erroneously interpreted the law when it determined that earth-moving equipment such as bulldozers, scrapers, road graders, and excavators used for soil conservation work on farms may qualify for ad valorem tax exemption under K.S.A. 2001 Supp. 79-201j(a) and the Kansas Constitution. Further, we find that BOTA did not err by disregarding judicial precedent in its construction and application of K.S.A. 2001 Supp. 79-201j(a).
Constitutionality of K.S.A. 2001 Supp. 79-201j(a).
On appeal, Wabaunsee County raises numerous constitutional issues. These issues were not raised before BOTA by Wabaunsee County.
“Clearly . . . BOTA is not vested with the authority to determine the constitutionality of a statute.” Zarda v. State, 250 Kan. 364, 370, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992). “A challenge to the constitutionality of a statute is a question of law. Our scope of review is, accordingly, unlimited. [Citation omitted.]” State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995). ‘Where there are no issues raised which lend tíiemselves to administrative determination and the only issues present either require judicial determination or are subject to judicial de novo review, it follows that plaintiffs should be permitted to seek court relief without first presenting the case to the administrative agency.” Zarda, 250 Kan. 364, Syl. ¶ 2.
Because the constitutional issues presented do not lend themselves to administrative determination and are subject to de novo review, they are properly before this court even though they were not first argued before BOTA. Therefore, we will consider each constitutional challenge raised by Wabaunsee County in its turn.
Wabaunsee County contends that if this court endorses B OTA’s broad construction of “farm machinery and equipment," the core operative terms of K.S.A. 2001 Supp. 79-201j(a) will have no settled meaning, rendering the statute void for vagueness.
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
“ ‘ “A statute will not be declared void for vagueness and uncertainty where it employs words commonly used, previously judicially defined, or having a settled meaning in law.” [Citation omitted.] “At its heart the test for vagueness is a commonsense determination of fundamental fairness.” ’ ” J.G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 502, 680 P.2d 291 (1984).
In its brief, Wabaunsee County implies that because tax statutes impose monetary penalties and criminal liability, this court should review tax statutes using the same standard of review for vagueness used for criminal statutes. However, the statute in question is one granting tax exemption, not imposing a tax penalty. Because K.S.A. 2001 Supp. 79-20lj does not prescribe any penalty or criminal liability, it is not criminal or quasi-criminal; rather, it is a civil statute.
Decisions from the United States Supreme Court, Tenth Circuit, and United States District Court for the District of Kansas indicate that civil statutes are subject to a less stringent vagueness review than criminal or quasi-criminal statutes. See Hoffman Estates v. Flipside, Hoffmann Estates, 455 U.S. 489, 495-96, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982); In re Higginbotham, 111 Bankr. 955, 965-966 (Bankr. N.D Okla. 1990); In re Heller, 160 Bankr. 655 (D. Kan. 1993).
“Where 1st Amendment freedoms are not concerned, the rule is that a statute is unconstitutionally vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” 160 Bankr. at 661 (citing Coates v. City of Cincinnati, 402 U.S. 611, 614, 71 L. Ed. 2d 214, 91 S. Ct. 1686 [1971], and Hoffman Estates, 455 U.S. at 495).
The tax exemption granted by article 11, § 1(b) of the Kansas Constitution and K.S.A. 2001 Supp. 79-20lj(a) sets forth a right or privilege, not a penalty. Therefore, the statute is unconstitutionally vague only if it is so unspecific as to expose taxpayers to judicial whim without “guidance or constraint.” Yick Wo v. Hopkins, 118 U.S. 356, 367, 30 L. Ed. 220, 6 S. Ct. 1064 (1886).
K.S.A. 2001 Supp. 79-20lj(a) exempts “[a]ll farm machinery and equipment. The term ‘farm machineiy and equipment’ means that personal property actually and regularly used in any farming or ranching operation. . . . The term ‘farming or ranching operation’ shall include the operation of a feedlot and the performing of farm or ranch work for hire.”
“The Constitution does not require the legislature to incorporate Webster’s into each statute in order to insulate it from vagueness challenges.” In re Kelly, 841 F.2d 908, 916 (9th Cir. 1988). We find the language of K.S.A. 2001 Supp. 79-201j(a) describes the exemption for farm machineiy and equipment sufficiently to withstand constitutional scrutiny for vagueness.
Wabaunsee County also maintains that K.S.A. 2001 Supp. 79-201j(a), together with K.S.A. 2001 Supp. 79-213(l)(l), create a statutoiy scheme delegating unilateral power to confer tax exemptions on unelected county appraisers in violation of the separation of powers doctrine of the Kansas Constitution.
A challenge to the constitutionality of a statute is one of law, and our review is de novo and unlimited. State v. Bryan, 259 Kan. 143, 145, 910 P.2d 212 (2000).
K.S.A. 2001 Supp. 79-213 generally describes the process through which a taxpayer may request an exemption from the payment of ad valorem property taxes that have already been assessed. It also sets forth the procedure for filing an appeal of the county appraiser’s determination of exemption to BOTA. Subsection (1) states: “The provisions of this section shall not apply to: (1) Farm machineiy and equipment exempted from ad valorem taxation by K.S.A. 79-201j, and amendments thereto.” K.S.A. 2001 Supp. 79-213(1).
Wabaunsee County asserts that under K.S.A. 2001 Supp. 79-213(1), where farm machinery and equipment already has or gains exempt status by virtue of the county appraiser’s determination, no one may file for an appeal of that determination to BOTA. Wabaunsee County presents a tortured argument that in the absence of a procedural remedy for other taxpayers who must bear a heavier tax burden when property receives an exemption, the legislature must provide reasonably definite standards in the exemption statute.
K.S.A. 2001 Supp. 79-201j provides tax exemption for all farm machinery and equipment that is personal property “actually and regularly used in any farming or ranching operation” including “the performing of farm or ranch work for hire.”
“Great latitude is granted to the legislature to delegate certain functions to the administrative branch of government. Courts start with the presumption that the legislature and the people have the right to assume that public officials will exercise their express and implied powers fairly, honestly, and reasonably. While standards must accompany a delegation of authority, great leeway should be allowed the legislature in setting forth guidelines or standards, and the use of general rather than minute standards is permissible. When the standard expressed in the statute is merely a finding of necessity, such a determination of need is constitutionally adequate when coupled with the assumption that it will be made fairly, honestly, and reasonably.” State ex rel. Tomasic v. Unified Gov’t of Wyandotte County/Kansas City, 265 Kan. 779, Syl. ¶ 12, 962 P.2d 543 (1998).
County appraisers are public officials, and, therefore, the legislature has the right to assume that a county appraiser will exercise his or her express and implied powers fairly, honestly, and reasonably. We find that the legislature has sufficiently expressed the standards to be used in determining the farm machinery and equipment tax exemption under K.S.A. 2001 Supp. 79-201j(a) to be constitutionally adequate.
Wabaunsee County also presented the following issue for our review: If article 11, § 1(b) requires farm machinery and equipment to be “used exclusively” for such purposes to qualify for tax exemption, did the amendment of the Kansas Constitution in 1985 effect an implicit repeal of all or part of K.S.A. 2001 Supp. 79-201j(a) to the extent that the statute confers an exemption for a class of property broader than the constitutional exemption? As noted above, article 11, § 1(b) does not impose the requirement that farm machinery and equipment be “used exclusively” for those purposes. Therefore, because we have answered the premise of this particular issue in tire negative, there is no need to address the implicit repeal challenge. Therefore, we proceed to the final unanswered constitutional challenge.
Wabaunsee County challenges K.S.A. 2001 Supp. 79-201j(a) as inconsistent with the Kansas Constitution and argues that it must be stricken as unconstitutional. Wabaunsee County contends the statute is inconsistent with article 11, § 1(b) in three ways.
“ ‘The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution and further the exercise of constitutional right to make it more available.. . .
“ ‘It is clear that legislation which would defeat or even restrict a self-executing mandate of the constitution is beyond the power of the legislature.’ ” Colorado Interstate Gas Co., 247 Kan. at 659.
First, Wabaunsee County makes the statement that the statute is narrower than the constitutional exemption and must be stricken. Wabaunsee County offers no explanation, however, of what particular aspect of the statute is narrower than the constitutional exemption. Nor is any further argument or authority presented. ‘While the constitutionality of a statute may be raised for the first time on appeal, if the issue is not adequately briefed to challenge the presumption of constitutionality, it is deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).” Kansas Human Rights Comm’n v. Dale, 25 Kan. App. 2d 689, 694-95, 968 P.2d 692 (1998).
Second, Wabaunsee County states that since the statute excludes passenger vehicles, trucks, trailers, etc., from the definition of farm machinery and equipment, these exclusions are inconsistent with the self-executing constitutional amendment.
K.S.A. 2001 Supp. 79-201j(a) states that “[t]he term ‘farm machinery and equipment’ shall not include any passenger vehicle, truck, truck tractor, trailer, semitrailer or pole trailer, other than a farm trailer, as the terms are defined by K.S.A. 8-126 and amendments thereto.” The definition of “farm trailer” in K.S.A. 8-126(z) includes every trailer and semitrailer “designed and used primarily as a farm vehicle.”
“The maxim expressio unius est exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, may be applied to assist in determining actual legislative intent which is not otherwise manifest, although the maxim should not be employed to override or defeat a clearly contrary legislative intention. [Citation omitted.] Under this rule, when legislative intent is in question, we can presume that when the legislature expressly includes specific terms, it intends to exclude any items not expressly included in the specific list. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998).
Webster’s New Collegiate Dictionary 682 (1981) defines machinery as “machines in general or as a functioning unit,” and equipment is defined as “the implements used in an operation or activity.” Taken together, these terms indicate legislative intent to exempt those machines and implements, including farm trailers, used in a farming or ranching operation. The terms, however, do not indicate an intent to exempt vehicles generally used for personal transportation or for the transportation other than of farm machinery or equipment. Therefore, the statute’s exclusion of passenger vehicles, trucks, and other trailers that are not farm trailers from the definition of farm machinery and equipment does not conflict with article 11, § 1(b).
We find that the exclusions contained in K.S.A. 2001 Supp. 79-201j(a) are in harmony with the constitutional exemption of farm machinery and equipment. Wabaunsee County’s assertion of constitutional violation fails.
Third, Wabaunsee County argues that the 1999 statutory amendment expanded the exemption to include a natural gas distribution system, which is arguably beyond the meaning of farm machinery and equipment as used in the Kansas Constitution. K.S.A. 2001 Supp. 79-20lj(a)(l) exempts “[mjachinery and equipment comprising a natural gas distribution system which is owned and operated by a nonprofit public utility . . . operated predominantly for the purpose of providing fuel for the irrigation of land devoted to agricultural use.”
“ ‘ “While the constitution provides that certain property shall be exempt from taxation, it does not declare that other exemptions may not be made, but does provide that property subject to taxation shall be taxed at a uniform and equal rate. So it has been held that the enumerated exemptions must be made, but that more exemptions may be made by the legislature. [Citations omitted.]” ’ ” Woman’s Club of Topeka v. Shawnee County, 253 Kan. 175, 187-88, 853 P.2d 1157 (1993).
The statutory exemption for natural gas distribution systems used predominantly to provide fuel for agricultural irrigation is not in conflict with the constitutional exemption for farm machinery and equipment. The legislature has the power to create further tax exemptions and Wabaunsee County’s assertion of error in this regard fails.
Lietz Construction’s equipment.
The final issue is whether BOTA correctly determined that Lietz Construction’s equipment qualified for tax exemption under K.S.A. 2001 Supp. 79-201j(a). Wabaunsee County complains that Lietz Construction failed to present substantial competent evidence to meet its burden of clear proof.
Under K.S.A. 77-621(c)(7), this court may grant relief from B OTA’s decision if
“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.”
To reach the conclusion that Lietz Construction’s equipment qualified for the farm machinery and equipment exemption, BOTA had to first make the legal determination that the equipment in question was personal property used in a farming or ranching operation. In addition, BOTA also had to make the factual determination that the equipment was actually and regularly used in farming or in farm work for hire.
In response to a letter from David Patton, chairman of BOTA, Merle and Nora Lietz stated that Lietz Construction was “a soil conservation contractor and [we] use our equipment 75-80 percent of the time for that purpose doing work for area farmers.” That letter was made part of BOTA’s record.
At the BOTA hearing, Merle Lietz took an oath to tell the truth. When counsel for Wabaunsee County questioned him about jobs performed other than employment on farms constructing terraces and other conservation work, Lietz responded that about 20 percent of Lietz Construction jobs were non-farm related. In regard to the rock quarry, Lietz testified that another pariy took rock from their property, but their equipment was only used to uncover the rock and to do the reclamation work after quarrying is finished. Lietz later reemphasized that 80 percent of time their equipment was used solely for the soil conservation reclamation and improvement work and that the work at the quarry was not included in that 80 percent. Moreover, Lietz stated that since he had been in business there was not a year where his equipment was used less than 50 percent of the time for soil conservation or land improvement work.
There is no evidence in the record suggesting that Lietz’ sworn testimony was untruthful. At the hearing and on appeal, his testimony is uncontroverted. Therefore, Lietz’ testimony provided substantial competent evidence for BOTA’s factual determination that Lietz Construction’s equipment was actually and regularly used in farm work for hire. Viewed in light of the record as a whole, substantial evidence supports BOTA’s decision.
Wabaunsee County also contends that BOTA’s decision failed to adequately set forth its findings of fact and conclusions of law, precluding meaningful judicial review. It notes that an administrative tribunal must set forth a concise and explicit statement of the underlying facts of record supporting its findings of fact under K.S.A. 77-526. Wabaunsee County states that this court cannot perform a meaningful review of the case under the standards of K.S.A. 77-621(c)(3) and (7) unless it remands this matter to BOTA for further fact finding.
Under K.S.A. 77-621(c), an appellate court may grant relief if it determines that: “(3) the agency has not decided an issue requiring resolution,” or “(7) the agency action is based on a determination of fact . . . not supported by evidence that is substantial.”
In its order, BOTA found:
“7. The Board finds that the subject property is actually and regularly used as farm equipment. The Board concludes that the applicant satisfies tire conditions enumerated in K.S.A. 79-201j(a), and amendments thereto.
“8. The applicant has also requested an exemption for the trailer that hauls the various dozers and scrapers. The Board finds that because the dozers and scrapers that the trailer hauls is [sic] farm equipment as defined in K.S.A. 79-201(j), and amendments thereto, the trailer that hauls the dozers and scrapers can also qualify for an exemption pursuant to K.S.A. 79-201(j), and amendments thereto.”
We have already determined that substantial evidence supports BOTA’s factual determination. As for Wabaunsee County’s contention that BOTA may have left an issue unresolved in contravention of K.S.A. 77-621(c)(3), it fails to outline what issue may have been left unresolved. Wabaunsee County simply complains that BOTA made virtually no explicit findings of material fact and failed to articulate any standard for determining whether earth-moving equipment met the requirements of K.S.A. 2001 Supp. 79-201j(a) and whether the trailers met the requirements of K.S.A. 8-126(z). In essence, Wabaunsee County is disputing BOTA’s legal conclusions, not its factual findings.
We have approved BOTA’s interpretation of K.S.A. 2001 Supp. 79-201j(a), allowing ad valorem tax exemption for equipment used in soil conservation work for farmers. We also find that BOTA’s determinations of fact were based on substantial evidence. For the reasons discussed, Wabaunsee County’s numerous claims of error fail.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Audra Corinna Watson, from her conviction of attempting to smuggle contraband into the Pratt County jail. The contraband consisted of 10 cigarettes in an envelope, which cigarettes are prohibited in that jail. Watson challenges the constitutionality of K.S.A. 2001 Supp. 21-3826. She concedes the statute is constitutional as applied, but contends it is facially unconstitutional.
On April 16, 2000, Watson visited an inmate at the Pratt County jail. As Sheriff s Deputy Harry Williams stood in the dispatch office in the law enforcement center, he noticed a reflection of a person kneeling near the door to the jail. Williams walked into the jailer’s office and asked Watson what she was doing. She was still kneeling in front of the door. Without answering, Watson stood up and walked through the doorway into the visitation room where she began talking to an inmate.
Williams asked the jailer to open the door where Watson had been kneeling, and there they recovered a white envelope containing 10 Camel cigarettes. When Williams confronted Watson with Watson replied, “I was asked to.” Watson would not tell officers anything else, so Williams placed her under arrest. The complaint charged Watson with introducing or attempting to introduce contraband into a correctional facility contrary to K.S.A. 21-3826.
The jailer, Charles Collins, testified that according to Pratt County jail policy, no tobacco is allowed in the jail. All inmates of the jail are given a sheet of paper explaining that no tobacco products are to be used within the jail. Jail visitors, however, are not given the written explanation of the tobacco policy. A sign posted outside the law enforcement center reads, in pertinent part: “ITEMS ALLOWED TO BE GIVEN TO INMATES: MONEY, SOCKS, UNDERWEAR, RELIGIOUS ARTICLES, NEEDED MEDICATION-NO EXCEPTIONS.”
According to Collins, jail visitors can bring items to the jailers to give to the inmates. The jailers check the items for contraband before passing them on to the inmates.
The prisoners are behind a glassed-in area and talk to visitors through a telephone. There is no physical contact and can be no physical contact between a prisoner and the visitor.
On November 14, 2000, the parties submitted their cases on stipulated facts before Judge Robert J. Schmisseur in the District Court of Pratt County. The parties stipulated to the evidence that could be considered by the court, Watson preserved her right to appeal all legal arguments, and the State agreed that it would not seek an upward dispositional or durational departure. Waiving all oral argument, Watson and the State submitted the matter to the court for a determination of guilt or innocence.
Judge Schmisseur issued a memorandum decision on December 4, 2000, finding Watson guilty of trafficking in contraband in a correctional facility in violation of K.S.A. 21-3826, a level 6 nonperson felony. The judge found that the presence of a large “No Smoking” sign at the public entrance, coupled with the sign listing the types of items that could be given to inmates, clearly communicated “the prohibition on tobacco cigarettes.” Further, the judge found that the administrator of the correctional institution did not consent to Watson’s attempt to introduce cigarettes into the jail.
Watson was sentenced to 24 months of probation with community corrections and a post-release supervision term of 24 months on January 17, 2001. Watson timely filed this appeal on January 19, 2001, pursuant to K.S.A. 22-3601.
I. K.S.A 21-3826; UNCONSTITUTIONALLY VAGUE
On appeal, Watson disputes the constitutionality of K.S.A. 21-3826, framing two challenges. For her first challenge, Watson contends that the broad definition of contraband in K.S.A. 21-3826 is unconstitutionally vague in violation of due process of law.
“A challenge to the constitutionality of a statute is a question of law. Our scope of review is, accordingly, unlimited. [Citation omitted.]” State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995).
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. See State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
“The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” State v. Huffman, 228 Kan. 186, Syl. ¶ 5, 612 P.2d 630 (1980).
K.S.A. 2001 Supp. 21-3826 states in pertinent part:
“(a) Traffic in contraband in a correctional institution is introducing or attempting to introduce into or upon the grounds of any correctional institution or taking, sending, attempting to take or attempting to send from any correctional institution or any unauthorized possession while in any correctional institution or distributing within any correctional institution, any item without the consent of the administrator of the correctional institution.
“(b) For purposes of this section, ‘correctional institution’ means any state correctional institution or facility, conservation camp, state security hospital, juvenile correctional facility, community correction center or facility for detention or confinement, juvenile detention facility or jail.
“(c)(1) Traffic in contraband in a correctional institution of firearms, ammunition, explosives or a controlled substance which is defined in subsection (e) of K.S.A. 65-4101, and amendments thereto, is a severity level 5, nonperson felony.
(2) Traffic in any contraband, as defined by rules and regulations adopted by the secretary, in a correctional institution by an employee of a correctional institution is a severity level 5, nonperson felony.
“(d) Except as provided in subsection (c), traffic in contraband in a correctional institution is a severity level 6, nonperson felony.” (Emphasis added.)
The history of the statute reveals that it was first enacted in 1969 and amended several times thereafter. The legislature substantially amended K.S.A. 21-3826 in 1997, removing a laundry list of items defined as contraband and adding subparagraphs (c)(1) and (c)(2). “Prior to 1992, K.S.A. 21-3826 specified what items were contra band, and the crime was limited to those items unless consent had been given.” Ponce, 258 Kan. at 710.
The express language of K.S.A. 2001 Supp. 21-3826 challenged by Watson has not been changed since the 1997 amendments. However, there are no prior cases that considered whether K.S.A. 21-3826 is impermissibly vague. This court has previously set forth the test for determining whether statutoiy language is vague.
“A criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. The determination of whether a criminal statute is unconstitutionally vague involves a second inquiry of whether the law adequately guards against arbitrary and discriminatory enforcement. When making either inquiry, tire court should bear in mind that the standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.” State v. Bryan, 259 Kan. 143, Syl. ¶ 2, 910 P.2d 212 (1996).
Our test reflects principles of constitutional law outlined by the United States Supreme Court. The Court has previously written:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. 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. . . . Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ ” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 12 L. Ed. 2d 377, 84 S. Ct. 1316 [1964]).
Our research disclosed no statutory provisions requiring county or municipal jail authorities to impart to visitors that the possession of tobacco could trigger a felony prosecution under K.S.A. 21-3826, or to disclose a list of other items that are considered contraband.
In State v. Adams, 254 Kan. 436, 866 P.2d 1017 (1994), the Chief of Police of St. John, Kansas, was charged with two counts of official misconduct. The applicable statute made it a crime for a public official to willfully perpetrate an act of misconduct but did not expressly list types of prohibited misconduct. There, we found the word “misconduct” made the statute impermissibly vague, observing that because of “the great divergence of opinion held in our society as to what is acceptable or proper behavior, misconduct is in the eye of the beholder.” 254 Kan. at 444.
In Adams, we also spoke of the second part of the vagueness analysis, which consists of a determination of whether the statute “ ‘adequately guards against arbitrary and discriminatory enforcement.’ [Citations omitted.] When making either inquiry, the court should bear in mind that ‘[t]he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.’ [Citation omitted.]” 254 Kan. at 439.
Our research for persuasive authority on this subject uncovered few cases factually similar to the case before us challenging the constitutionality of a contraband statute. Three cases merit attention, however.
In United States v. Park, 521 F.2d 1381 (9th Cir. 1975), Loretta Mae Park was convicted of attempting to bring 30 Valium tablets concealed in a Vaseline-coated balloon into a federal correctional institution in violation of the federal contraband statute, 18 U.S.C. § 1791 (2000). Park appealed her conviction, alleging that the federal contraband statute was unconstitutionally vague and over-broad.
The federal contraband statute challenged in Park prohibited the introduction or attempt to introduce anything “ ‘without the knowledge and consent of the warden or superintendent.’ ” 521 F.2d at 1383. Park argued that statute could possibly cover such things as artificial limbs, pens, and partial dental plates, and contended that the only way to comply with the statute was to enter the grounds of a correctional institution stark naked.
The Ninth Circuit Court of Appeals stated that “[u]nder a plain reading of the language of the statute, until a rule is made prohibiting the bringing in or removal of certain items from prison grounds, the statute’s prohibitions do not come into play.” 521 F.2d at 1383. Therefore, the court did not find the statute was inherently vague or overbroad simply because it delegated to the attorney general the task of determining what items were considered contraband. However, the court did not end its analysis there. The Park court continued with an analysis of whether the statute was implemented by prison authorities in a constitutionally acceptable matter. The court noted:'
“Before a person is admitted to visit an inmate at a federal correctional institution, certain procedures must be complied with. First, one must be approved as a visitor. When a visitor has been placed on the approved list, along with the notification of approval, the warden sends the visitor a printed letter of regulations pertaining to prison visits [citation omitted]. Second, each and every time a visitor arrives at the prison, he is required to fill out and sign a visitor’s form [warning that the introduction or attempt to introduce contraband is punishable by up to 10 years’ imprisonment].” 521 F.2d at 1384.
Because Parks was given visitor’s forms notifying her that visitors were prohibited from bringing drugs into the prison during her 228 previous visits, the Court found she received sufficient notice that her conduct was prohibited criminally. Limiting its opinion to the Parks case alone, the Court of Appeals found the constitutional challenge meritless.
This case illustrates the general principle that a statute is not necessarily vague or overbroad simply because the legislature delegates the authority to determine what items constitute contraband to an agent or an agency. Yet, the broad authority granted by this type of statute demands that procedural safeguards are in place, i.e., adequate notice to prison visitors, in order to ensure that the statute is implemented in a constitutional manner.
Next, we turn to People v. Holmes, 959 P.2d 406 (Colo. 1998). There, attorney Holmes visited a client who was incarcerated in the Mesa County detention facility. Holmes was charged with violating the Colorado contraband statute after an envelope from Holmes’ law firm containing cigarettes and a book of matches was discovered on the floor of the visitation room. Holmes filed a motion to dismiss the charges, and the trial court granted the motion, holding the contraband statute unconstitutional.
The Colorado contraband statute, like our statute, provided that each detention facility administrator promulgates a list of items considered to be contraband. The statute also requires the administrator of each detention facility to provide reasonable notice of those items determined to be contraband. Significantly, the statute requires each administrator to determine whether an item poses or may pose a security threat; therefore, an item is not considered contraband under the statute until such a determination has been made.
On appeal, the Supreme Court of Colorado first considered whether the statute violated the nondelegation doctrine and decided en banc that it did not. According to the Holmes court, the Colorado Legislature could properly delegate the authority to decide what items are contraband to the administrators of each detention facility.
Next, the Holmes court examined whether the detention facility had failed to provide adequate notice that cigarettes and matches were contraband. Holmes contended that the signs posted in the detention facility were defective because, even though they stated visitors were not allowed to give inmates tobacco, the signs failed to put the public “ ‘on notice that tobacco would cause a felony prosecution or that it would be considered “contraband” under the statute.’ ” 959 P.2d at 413. The Colorado Supreme Court agreed with Holmes that the contraband statute demands notice “that introducing specific items into the facility is criminal conduct.” 959 P.2d at 414. Further, the court noted that “the notice must be sufficient to allow a visitor to ascertain whether introducing a certain item violates the Contraband Statute.” 959 P.2d at 417. Thus, although the Colorado Supreme Court held that the contraband statute was constitutional, it found the notice provided by the detention facility inadequate. 959 P.2d at 418.
Finally, in People v. Carillo, 323 Ill. App. 3d 367, 751 N.E.2d 1243 (2001), the Illinois Appellate Court considered whether Carillo brought contraband into a penal institution when he locked beer in his car in the prison parking lot. The Illinois statute prohibits the introduction of contraband into penal institutions and expressly lists items of contraband, such as cellular phones, com puters, pagers, broken bottles, safety flares, as well as “weapons,” a term “broadly defined to cover anything from tire irons to golf clubs.” 751 N.E.2d at 1244-45. The Carillo court reasoned:
“Many of our penal institutions allow family and friends to visit prisoners. In order to ensure prison safety and security, the law prohibits those visitors from bringing certain things with them when they come into the penal institution [citation omitted],. . .
“[I]n addition to obvious contraband like illegal drugs or firearms, visitors must refrain from bringing a host of intrinsically innocent items with them when they enter a jail or a prison.
“Given the kinds of items that now compose the statute’s expansive contraband list, the crime of bringing contraband into a penal institution must receive a strict and narrow reading to preserve its validity.
“[A] broader reading of the statute would present a serious question of constitutionality.
“The United States Supreme Court noted long ago: ‘If the legislature undertakes to define by statute a new [offense] and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime.’ United States v. Reese, 92 U.S. 214, 220, 23 L. Ed. 563, 656 (1875) ....
“Few people of common intelligence would know that driving onto a visitors’ parking lot with items that are legal to possess outside of a jail or a prison violates a law that prohibits ‘bringing contraband into a penal institution.’ Most people would think that they could comply with the law by leaving items that authorities did not want them to bring into the penal institution securely locked inside of their cars. The construction of the statute used to convict Pedro Carillo would deceive many a well-minded person and allow for unnoticed and unwitting criminal sanction.” 751 N.E.2d at 1244, 1248, 1250.
The Carillo case illustrates the principle that due process requires nondeceptive notice such that every person is able to know with certainty when he or she is committing a crime. The Holmes court expressed a similar concern, and stated:
“Generally speaking, where the law imposes criminal liability for certain conduct, the scienter element requires ‘no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.’ [Citation omitted.] This general rule is based on the deeply-rooted principle that ignorance of the law or mistake of law is no defense to criminal prosecution. [Citations omitted.] ‘Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law.’ Cheek v. United States, 498 U.S. 192, 199, 111 S. Ct. 604 (emphasis supplied).
“The rule that ignorance of the law will not excuse its violation is limited, however, by the constitutional demands of due process. See Lambert, 355 U.S. at 228, 78 S. Ct. 240. ‘Engrained in our concept of due process is the requirement of notice.’ Id. Thus, a law violates due process if it is so vague that its prohibitions are not clearly defined. [Citations omitted.]
“The due process requirement that a statute clearly define the prohibited conduct is not relaxed simply because the statute delegates certain decisions to an agent or agency. In such a situation “ ‘[t]he responsibility to promulgate clear and unambiguous standards is on the [agency].’ ” United States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995). Furthermore, where a violation of an agency regulation subjects a party to criminal sanctions, ‘a regulation cannot be construed to mean what an agency intended but did not adequately express [and] the [administrative head of the agency] has the responsibility to state with ascertainable certainly what is meant by the standards he has promulgated.’ Gates & Fox Co. v. Occupational Safety & Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986).” 959 P.2d at 414-15.
It is constitutionally permissible for the legislature to vest the administrators of correctional institutions with the authority to determine what items constitute contraband; however, adequate safeguards must be in place to ensure that the statute is not implemented in an unconstitutional manner.
Administrators of correctional facilities must provide persons of common knowledge adequate warning of what conduct is prohibited for two reasons: to provide fair notice and to safeguard against arbitrary and discriminatory enforcement.
Watson does not challenge the constitutionality of K.S.A. 21-3826 as applied, but contends it is facially unconstitutional.
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the . . . Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘over-breadth’ doctrine outside the limited context of the First Amendment. [Citation omitted.]” United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987).
We do not find K.S.A. 2001 Supp. 21-3826 constitutionally inadequate on its face.
II. SEPARATION OF POWERS DOCTRINE
For her second challenge, Watson argues that K.S.A. 21-3826 impermissibly delegates legislative authority to the administrator of the Pratt County jail, violating the separation of powers doctrine.
A challenge to the constitutionality of a statue is one of law, and our review is de novo and unlimited. See Bryan, 259 Kan. at 145.
In Ponce, this court held that the 1994 version of the statute did not unlawfully delegate legislative authority in violation of the separation of powers doctrine. There, we examined the legislative change abandoning a statutory list of contraband in favor of making all items contraband unless consent was obtained by the administrator of the correctional institution in question. In Ponce, we observed:
“The federal statute that defines the comparable federal crime, 18 U.S.C. § 1791 (1994), is very similar to the present Kansas statute and has withstood various constitutional challenges based upon the separation of powers doctrine. See, e.g., Carter v. United States, 333 F.2d 354 (10th Cir. 1964).
“The legislature could have provided more in the way of standards in the statute than it did, but the failure to do so is not a fatal defect. We conclude K.S.A. 1994 Supp. 21-3826 is not a constitutionally impermissible delegation of legislative authority.” (Emphasis added.) 258 Kan. at 716.
Watson observes that the Ponce decision involved an almost identical issue: whether K.S.A. 21-3826 violated the separation of powers doctrine by allowing the administrator of the Department of Corrections to determine which items qualified as contraband. Watson attempts to distinguish Ponce by arguing that it dealt with the Secretary of the Department of Corrections while the present case involves the administrator of the Pratt County jail.
Under K.S.A. 1994 Supp. 21-3826 and the presently applicable version of the statute, the definition of correctional institution includes any jail. K.S.A. 2001 Supp. 21-3826; Ponce, 258 Kan. at 710. Thus, Watson’s argument that the Ponce holding does not extend to the administrator of the Pratt County jail rings hollow.
We find Ponce dispositive of the separation of powers issue raised by Watson. Therefore, Watson’s argument that K.S.A. 21-3826 impermissibly delegates legislative authority to the adminis trator of the Pratt County jail in violation the separation of powers doctrine fails. See Ponce, 258 Kan. at 711.
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The opinion of the court was delivered by
Allegrucci, J.:
The Kansas Public Employees Retirement System (KPERS) sought damages from the law firm of Kutak Rock for losses from investments in Sharoff Food Service, Inc. The district court granted summary judgment in favor of Kutak Rock. KPERS appeals. The case was transferred from the Court of Appeals on KPERS’s motion. K.S.A. 20-3017.
The issue raised on appeal is whether the district court erred in entering summary judgment in favor of Kutak Rock on (1) KPERS’s claims for breach of contract and professional negligence and (2) KPERS’s claim for participation in a breach of trust.
This is one of several actions prosecuted by KPERS seeking damages for its investment losses and the fifth appeal to come to this court. This action pertains to KPERS’s investment in Sharoff Food Service, Inc. (Sharoff), a food service and distribution company located in Denver, which eventually sought bankruptcy and ceased doing business in June 1989. Kutak Rock was named as one of a number of defendants in KPERS’s first amended petition in the district court’s Case No. 92 CV 805. The allegations against Kutak Rock are for professional negligence and breach of contractual and fiduciary duties and participation with Reimer & Koger Associates, Inc. R & K in a breach of trust. This appeal involves only KPERS’s claims against Kutak Rock.
KPERS alleged that Kutak Rock, which had been hired by R & K to help with KPERS’s investment in Sharoff, failed to perform duties owed to KPERS, including advising KPERS about the investment and compliance with investment guidelines and statutory requirements. KPERS also alleged that Kutak Rock participated in R & K’s breach of statutory and fiduciary duties to KPERS.
In granting summary judgment in favor of Kutak Rock and against KPERS, the district court made extensive findings of fact. On appeal, KPERS included a lengthy statement of facts in its brief, but it did not specify any of the trial court’s findings as contested. It is settled that unappealed determinations of fact are final and conclusive. KPERS v. Russell, 269 Kan. 228, 229, 5 P.3d 525 (2000).
The following narrative statement of facts is based on the findings of fact in the district court’s memorandum decision and order regarding Kutak Rock’s motion for summary judgment. Introducing its findings of fact, the district court stated that they “reflect either: (1) facts which are not controverted by the parties or (2) controverted facts as construed in the light most favorable to KPERS as the party opposing the summary judgment.”
Plaintiff KPERS is an instrumentality of the State of Kansas that manages the Kansas public employees’ retirement fund. It is governed by a board of seven trustees, who are appointed by the Governor for overlapping 4-year terms. KPERS trustees establish investment policies. They are authorized to consult with advisors regarding the management of the funds and investments.
In 1973, R & K began serving KPERS as an investment manager for some publicly traded investments. In 1975, R & K and KPERS entered into an “Investment Counselor Agreement.” In 1985, the parties supplemented the existing contract with a “Special Investment Advisory Services Agreement,” which authorized R & K to make investments.
Sharoff was a Denver, Colorado, food service and distribution company. It sought capital for expanding its business and acquiring a competitor, W. T. Stevenson and Company, Inc. R & K determined that Sharoff was a prudent and appropriate investment opportunity for KPERS and recommended that KPERS make an investment. On behalf of the Kansas Debt Fund (KDF), a nominee of KPERS, R & K invested $6.38 million in Sharoff on June 3, 1987.
In preparing for the Sharoff investment, R & K contacted the Denver office of Kutak Rock law firm. Kutak Rock’s engagement letter to R & K stated that Kutak Rock would act as counsel to R & K, as agent for the investors who proposed to invest in Sharoff. The letter stated:
“We [Kutak Rock] will perforin all services customarily performed by counsel in domestic transactions of the nature contemplated herein, including among otber services, the drafting, negotiating and preparation of a preliminary agreement, or commitment letter, outlining the basic terms of the investment and a definitive agreement for the purchase by Reimer and Koger, on behalf of the Investors, of subordinated Debentures, shares of Preferred Stock and Warrants to purchase Common Stock, of Sharoff, as well as all other documents necessary to effect the investment. In addition, we will perform such due diligence inquiries and activities as may be required by the investors- in connection with its investment. We further understand that we may be called upon to render corporate, securities and tax advice in structuring the transaction.”
Edward Hart of R & K executed the engagement letter on behalf of R & K. In his deposition, Hart testified that the agreement was that Kutak Rock would prepare documents for the transaction. Asked what due diligence consisted of as the phrase was used in the commitment letter, Hart answered: “Assuming as the agent for the investors at that particular point in time I would have requested they determine that Sharoff was in legal standing in the State of Colorado.”
Hart also testified that he did not intend for Kutak Rock to do any financial due diligence. Instead, any due diligence expected of Kutak Rock would be related to reviewing articles of incorporation, bylaws, minutes of board meetings, and verifying that the corporation was in good standing.
Asked whether it was his intent that Kutak Rock make a determination for R & K whether the investment was prudent, Hart testified that, to the best of his recollection, he did not. Asked whether it was his intent that Kutak Rock provide R & K with an opinion as to whether R & K was authorized to make the investment in Sharoff on behalf of KDF, Hart testified that, to the best of his recollection, he did not.
Kutak Rock was never asked by anyone at R & K to review R & K’s due diligence, and Kutak Rock never did so. Kutak Rock was never asked to negotiate the business or investment terms of the Sharoff transaction, and Kutak Rock never did so. The due diligence investigation of Sharoff that was performed by R & K was in progress or completed by the time Kutak Rock was engaged.
Kutak Rock drafted a commitment letter, performed a due diligence investigation, and drafted the documents necessary to close the investment and acquire an ownership interest. The categories of the checklist include corporate records, governmental filings and disclosure documents, financing documents and correspondence, material agreements, and miscellaneous. In the miscellaneous category are documents on employee benefits, a schedule of litigation and government proceedings, correspondence with accountants and lawyers, judgments and consent decrees, company or industry investment analyses, appraisals, Dun & Bradstreet Report, financial statements, and any other information relevant to the financial condition of the company.
Kutak Rock associate Michelle Keist was primarily responsible for collecting information pursuant to the due diligence checklist. Kevin Cudney was the Kutak Rock attorney primarily responsible for maintaining contact with R & K on the transaction.
Kutak Rock prepared a due diligence report and submitted it to Hart. The district court found:
“The due diligence report, among other things, reported that records of Sharoff were not readily accessible or well organized, that minutes of board of directors meetings were missing, and that there were significant gaps in Sharoff s financial reports. The report also detailed material financial obligations, litigation, transactions with affiliates, account payables, employment issues relating to union employees, salaries of key employees, equity agreements, and shareholders agreements.”
After discussing the due diligence report with Hart, Cudney prepared the following memorandum to the file:
“On Thursday afternoon, May 28, 1987,1 had a brief telephone conversation with Edward Hart of Reimer and Koger Associates, Inc. in connection with the captioned transaction regarding our ‘due diligence’ report ....
“I asked Mr. Hart if the report contained any ‘surprises,’ or other matters which he believed we should investigate further. I specifically mentioned the lease arrangements between Sharoff and Platte River Partnership, the general partners of which are affiliates of Sharoff. ■ Mr. Hart responded that he was aware of the relationship and the lease transaction and that it did not trouble him. He stated only that he would like us to review the partnership agreement, for Platte River, but that he had no further questions or comments on the report.
“I next stated that our ‘due diligence’ investigation was necessarily rushed by the aggressive scheduling of the transaction. Mr. Hart responded that he was aware of the problem. But believed that he and his associate, Mr. Crew, were quite familiar with the affairs of Sharoff and were relying more on their investigation than our due diligence efforts.”
R & K made the decision to invest in Sharoff. Kutak Rock prepared the documents necessary to effect R & K’s investment de cisión. The closing memorandum for the transaction identified the purchaser as “K.D.F., a Kansas nominee general partnership,” and the “Counsel to Purchaser” as Kutak Rock.
Cudney’s opinion of Hart and Bob Crew of R & K, throughout the transactions, was that they were competent, sophisticated investment advisors.
On appeal, KPERS states that its breach of contract and professional negligence theory of liability against Kutak Rock is that, even though Kutak Rock was aware of facts indicating that the Sharoff investment did not comply with the Kansas statute governing investment of KPERS’s trust funds, it went ahead and provided the due diligence and transactional services necessary to completion of the investment. The statute is K.S.A. 74-4921(4) (Ensley 1985), which provides:
“(a) In investing and reinvesting moneys in the fund and in acquiring, retaining, managing and disposing of investments of the fund there shall be exercised the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of the foregoing standard and subject to clause (b) of this subsection, there may be acquired, retained, managed and disposed of as investments of the fund every kind of investment which men of prudence, discretion and intelligence acquire, retain, manage and dispose of for their own account.”
In other words, prudence is the statutory standard that governs investment of KPERS funds. KPERS’s claim is that Kutak Rock provided services necessary to completion of the Sharoff investment transaction in spite of its being aware of facts indicating that the investment was not prudent. KPERS’s statement of its claim does not identify contractual provisions or duties owed by Kutak Rock.
The district court concluded that Kutak Rock did not owe KPERS a duty to determine that the Sharoff investment was not a prudent one. The district court examined allegations of both contractual' and tort duty and concluded that neither existed in the circumstances of this case.
With regard to a contractual provision, the district court examined Kutak Rock’s engagement letter to R & K and noted that in the letter Kutak Rock agreed to “perform ‘due diligence as the Investors may require.’ ” The district court found that the nature of the due diligence is not further specified so that the provision is ambiguous. The district court, therefore, examined parole evidence as to the intent of Cudney and Hart, who executed the engagement letter. The district court found that the “evidence is undisputed and establishes that Mr. Hart expected Kutak Rock to determine that Sharoff was a corporation in good standing. There is no evidence that an express agreement was made that Kutak Rock would perform any other due diligence or that it would perform any due diligence related to Stevenson.” “Hence,” the district court concluded, “there was no agreement as to the terms KPERS seeks to read into the contract.”
On appeal, KPERS’s position seems to be that summary judgment on its breach of contract claim was improper because there is a factual dispute whether Kutak Rock agreed to examine the investment’s compliance with Kansas law. As already noted, however, KPERS has not specified any of the trial court’s findings as contested.
With regard to a professional duty implied in law, the district court stated: “Since the record is undisputed that Kutak Rock performed the due diligence agreed to by the contracting parties and issued a report, the question is whether Kutak Rock met the standard of care in performing this obligation.” The district court systematically analyzed the professional negligence claim according to the list of elements set out in Phillips v. Carson, 240 Kan. 462, 476, 731 P.2d 820 (1987): “(1) the existence of an attorney-client relationship giving rise to a duty; (2) a breach of that duty by an act or omission of the attorney; (3) actual damages . . . sustained by the client; and (4) a proximate cause relationship between the damage and the attorney’s breach of duty.”
(1) Attorney-client relationship. The memorandum of closing prepared by Kutak Rock identified the purchaser as K.D.F. and Kutak Rock as the attorney for the purchaser. For purposes of summary judgment, therefore, the district court assumed that an attorney-client relationship existed between KPERS and Kutak Rock. On appeal, Kutak Rock asserts that it had no attorney-client relationship with KPERS, but fails to address its designating itself as K.D.F attorney in the closing documents.
(2) Breach of duty. KPERS alleged that Kutak Rock breached its duty by failing to
“(a) advise, counsel and assist Reimer & Koger regarding the contractually mandated requirements of prudence in KPERS’ investments; (b) advise KPERS’ Board of the unlawful and imprudent investment of KPERS’ funds; (c) guard against and advise the KPERS’ Board of the negligence and breach of fiduciary duties of the Reimer and Koger Defendants; (d) perform adequate due diligence reviews of Sharoff and its records on behalf of KPERS in connection with KPERS’ Initial Investment; and (e) examine the facts and circumstances to ensure that KPERS’ Initial Investment in Sharoff was prudent as required by Kansas law.”
According to the district court, “[t]he essence of these allegations is that Kutak Rock failed to determine or advise KPERS that the investment in Sharoff was an imprudent and, therefore, illegal investment.”
The question of breach, as framed by the district court, was
“whether outside counsel representing KPERS, a public employee trust, had a duty to determine whether a particular investment (Sharoff) complied with tire KPERS’ prudent investment statute and guidelines and upon completion of that investigation report the results directly to the KPERS’ trustees rather than to the agent of KPERS who was performing financial due diligence and to whom KPERS had delegated the authority to make the investment?”
It may be noted that this statement of the issue leaves out part (a) of KPERS’s allegations, which is that Kutak Rock failed to advise R & K of financially questionable aspects of Sharoff s operation. The district court expressly found that Cudney discussed the Kutak Rock due diligence report, including specific findings regarding a lease transaction, with Hart of R & K and was assured that R & K was very familiar with Sharoff s affairs and was relying more on its own investigation than on Kutak Rock’s efforts. For this reason, it was not included in the question of law.
One facet of the duty question, as stated by the district court, is whether Kutak Rock had a duty to determine whether the proposed investment in Sharoff was a prudent one. The district court concluded that “[n]o duty exists requiring an attorney to advise a client regarding the advisability of an investment.”
The district court quoted the standard articulated with regard to the liability of an accountant to a trust in Gillespie v. Seymour, 19 Kan. App. 2d 754, 876 P.2d 193, rev. denied 255 Kan. 1001 (1994). The Court of Appeals stated:
“There is no independent duty of an accountant to say no to a client who has decided on a noncriminal financial course of action and does not ask the accountant’s advice. This is true even if the accountant does not think the course of action is a good idea and another of the accountant’s clients might benefit by it.” 19 Kan. App. 2d at 770.
In addition to its reliance on Gillespie, the district court cited cases from New Jersey and New York. Lamb v. Barbour, 188 N.J. Super 6, 455 A.2d 1122 (1982); Vitale v. Coyne Realty, Inc., 414 N.Y.S.2d 388, 66 App. Div. 2d 562 (1979). In concluding its reasoning, the district court turned to commentators:
“In summarizing such cases, authors of a leading treatise on legal malpractice stated that an attorney does not have ‘an omnipresent responsibility to ferret out all possible problems as “trustee” of the client’s interests. Nor does a lawyer have an ombudsmen responsibility to protect the client from his or her own limited business expertise.’ R. Mallen & J. Smith, Legal Malpractice § 8.2, at 560 (4th ed. 1996). See Resolution Trust Corp. v. Blasdell, 154 F.R.D. 675 (D. Ariz. 1993).”
Having concluded that Kutak Rock did not owe a duty to KPERS to determine whether the Sharoff investment was prudent, the district court did not consider questions of damages or proximate cause.
In its memorandum decision, the district court also rejected KPERS’s additional claims that Kutak Rock had a duty to ensure an independent financial analysis and a duty to ensure that information was communicated to the client. The district court reasoned that each of the additional alleged duties would involve Kutak Rock’s determining whether the Sharoff investment was prudent, which it had no duty to do.
The existence of a legal duty is a question of law over which this court exercises unlimited review. Glassman v. Costello, 267 Kan. 509, 521, 986 P. 2d 1050 (1999).
On appeal, KPERS fails to distinguish between duty and breach of duty. KPERS cites Crandon v. State, 257 Kan. 727, 742, 897 P.2d 92 (1995), for the principle that the attorney for an organization has a “responsibility to give advice when necessary to prevent or rectify unlawful or improper acts of the organization and its employees.” The court’s statement in Crandon was not a formulation of duty for a law firm. It was an illustration of the necessity of a close and trusting relationship between an organization and its counsel. The illustration was part of the court’s reasoning why deference was owed to the organization’s decision to terminate employment of the general counsel for the Office of the State Banking Commissioner after counsel disrupted the relationship of mutual trust by going to the FDIC with alleged violations of law by a deputy commissioner.
Cases cited by the district court shed more light on the issue at hand. In Resolution Trust Corp v. Blasdell, 154 F.R.D. 675 (D. Ariz. 1993), the trial court dismissed and entered judgment against Resolution Trust Corporation (RTC) on its various claims against the law firm, Jennings Strouss & Salmon (Jennings Strouss), that had performed legal services for Sentinel Savings & Loan Association (Sentinel), an insolvent savings and loan institution. The RTC’s claims against the law firm fell into two categories — unspecified loan transactions and the Indian School transaction. The court dismissed all claims based on unspecified loan transactions for lack of specific facts regarding the law firm’s alleged misconduct. 154 F.R.D. at 685. The court entered judgment in favor of the law firm on claims based on the Indian School transaction, which violated regulations. The court rejected RTC’s allegation that the law firm had a duty to investigate and advise Sentinel regarding regulatory violations. The law firm’s representation of Sentinel was substantial, resulting in the law firm’s receiving more than $1 million in fees from Sentinel in 5 years for performing the following services:
“prepared standardized loan forms for Sentinel, advised Sentinel regarding the duties and liabilities of directors and officers of financial institutions, represented Sqntinel on 9 of the 11 loans which are the target of RTC’s Complaint in this action, prepared proxy statements for Sentinel, worked on a subsequent public offering of Sentinel stock, advised Sentinel regarding potential expansion in California, represented Sentinel in loan workouts and foreclosures, represented Sentinel in other types of litigation, and advised Sentinel regarding a variety of regulatory issues and interfaced with the regulators on Sentinel’s behalf.” 154 F.R.D. at 685.
The RTC case and the present case are similar in material ways. Jennings Strouss provided typical legal services for Sentinel, and Kutak Rock provided typical legal services for KPERS. The RTC case, though, involved circumstances seemingly much more likely to give rise to a duty than the circumstances of the KPERS case. Jennings Strouss’ representation of Sentinel was direct, certainly not confined to one transaction, quite comprehensive in range, and even included advising Sentinel regarding a variety of regulatory issues. Nonetheless, the federal district court rejected RTC’s allegation that the law firm had a duty to investigate and advise Sentinel regarding regulatory violations in a particular transaction. 154 F.R.D. at 685. Kutak Rock’s representation of KPERS, in contrast, was not direct, was confined to one transaction, was not at all comprehensive in range, and did not include advising KPERS regarding the financial advisability of transactions other than the Sharoff investment.
The key to the RTC decision is that the scope of the law firm’s duty was delimited by the client’s express request for services. Hence, even though Jennings Strouss had advised Sentinel regarding regulatory issues on some transactions, Jennings Strouss did not have a duty to advise Sentinel of Loans-to-One-Borrower regulations that might be violated by the Indian School transaction because Sentinel did not ask the law firm to do so. And, in the regular course of documenting the transaction, the law firm did not obtain information necessaiy to formulate the advice. On this topic, the court stated:
"With respect to the Indian School transaction, . . . Sentinel only asked Jennings Strouss to document the loan and did not ‘instruct, pay, authorize, or give Jennings Strouss information sufficient to determine whether Sentinel had complied with the loans to one borrower regulations with regard to the borrower or some potential assignee.’...
“Jennings Strouss . . . correctly advised Sentinel regarding the Loans to One Borrower regulations and . . . Sentinel chose to handle implementation of these regulations in-house.” 154 F.R.D. at 684.
The facts of the present case have even less potential for giving rise to the duly alleged by the claimant. The scope of Kutak Rock’s services was stated in its engagement letter to R & K, which hired Kutak Rock and served as KPERS’s investment advisor. As we have already seen, the letter specifically stated what services would be performed. The bulk of the services is documenting the transaction, and Kutak Rock stated its understanding that it may be asked for legal advice “in structuring the transaction.” KPERS’s claim that Kutak Rock had a duty to render advice regarding the financial wisdom of the investment rests on Kutak Rock’s agreement to “perform such due diligence inquiries and activities as may be required by the investors.” KPERS, however, does not contend that it specified what it required in the way of due diligence inquiries and activities. Nor does KPERS contend that it specified that the results of due diligence inquiries and activities should be reported directly to KPERS rather than to the investment advisors. Without these directions, according to the reasoning of the RTC case, Kutak Rock did not have the alleged duties to undertake an independent financial analysis and to communicate the results of the independent financial analysis to the client.
The case of Lamb v. Barbour, 188 N.J. Super 6, which is cited by the district court, is in accord with the federal court’s view that an attorney’s duty to his or her client corresponds to the undertaking. In Lamb, when businesses collapsed shortly after acquisition, clients sued the attorney who represented them in connection with the purchase. The trial judge concluded that the attorney should have told his clients “of his doubts concerning the sufficiency of their judgment, skill and experience to operate businesses which involved annual gross revenues of over a million dollars and approximately 100 employees,” that the sellers’ claims of unreported income might be false, that the sellers’ failure to report income could result in liability for back taxes and penalties, and should have recommended to his clients that they obtain a current financial statement, have an accountant examine the books, and inspect the sellers’ equipment. 188 N.J. Super at 10-11. The appellate court disagreed, stating: “The extent of a lawyer’s liability to his client ‘necessarily depends upon the nature of the undertaking.’ [Citation omitted.]” N.J. Super at 14. The appellate court believed it would have been presumptuous for defendant to have cautioned against purchasing die businesses due to his clients’ lack of business acumen. The court stated:
“Plaintiffs’ reliance on defendant’s background in tax law and accounting did not justify the expectation of counselling as to the prudence of the course they had chosen. This decision was properly left to the exercise of plaintiffs’ business judgment. To hold defendant answerable for his failure to discourage the transaction we would have to speculate about his possible liability had he succeeded and the businesses were later operated successfully by another buyer.” 188 N.J. Super at 14.
It could be said in the present case, too, that holding the law firm to a duty to advise its client of the financial wisdom of an investment could result in liability for a breach of duty should the investment prove sound. That is, given the duty of financial advising, if Kutak Rock had convinced KPERS that the Sharoff investment was imprudent and some other investor had benefited from it, we could be speculating about Kutak Rock’s possible liability for KPERS’s lost opportunity.
KPERS contends that the standard is higher in this case because it is a trust. KPERS sought to establish the standard through the testimony of expert witnesses. The existence of a duty being a matter of law for the court’s determination, the legal conclusions of expert witnesses do not settle the analysis. None of the cases cited by KPERS supports its position in the circumstances of this case. Moreover, Gillespie IV, in which the Court of Appeals considered the duty of an accountant to a trust, states that “[a]n accountant has a duty to do that which he or she is hired to do.” 19 Kan. App. 2d at 769. Like an accountant who has a duty to do that which he or she is hired to do, an attorney has a duty to do that which he or she is hired to do by a trust or non-trust client.
KPERS contends that even if Kutak Rock initially did not owe a duty to KPERS to determine whether the Sharoff investment was prudent, when Kutak Rock learned, as it inevitably did, that the investment was imprudent, the law firm then had a duty to advise KPERS. The district court rejected this argument on the ground that Kutak Rock had no duty to engage in financial analysis, and, hence, the law firm had no duty to communicate information gleaned from financial analysis to KPERS. In addition, the district court found no evidence that Kutak Rock did not provide R & K with all of the information it had. The district court rejected KPERS’s contention that any information should have been given to it rather than or in addition to R & K. Citing Villanueva v. Brown, 103 F.3d 1128 (3d Cir. 1997), and Heine v. Newman Tannenbaum, 856 F. Supp. 190 (S.D.N.Y. 1994), the district court concluded that an attorney can rely on a client’s delegation to an agent.
Each of the federal cases involved a law firm’s disbursing a client’s money in reliance on the instructions of a person who held a power of attorney. In this case, Kutak Rock communicated perceived weaknesses in Sharoff s business structure and practices to R & K, which was employed by KPERS as the investment advisor. In the federal cases, the law firms’ duty was not to disburse a client's money without authority of the client. The law firms acted on the belief that the client, through the person holding the power of attorney, had authorized disbursal. In the present case, the law firm’s alleged duty was to communicate any misgivings about the Sharoff investment directly to KPERS. The alleged breach was communicating with R & K rather than directly with KPERS. Even though there is little common ground between the federal cases and the present one, the principle for which the district court cited the federal cases seems sound. The district court rejected KPERS’s contention that Kutak Rock had a duty to give any information to it rather than or in addition to R & K on the ground that an attorney may rely on a client’s delegation to an agent. In this case, KPERS employed the services of R & K for investment advice. In communicating with R & K about Sharoff s enterprise, Kutak Rock was communicating with the firm on which KPERS relied for investment advice. Thus, if a duty to advise devolved upon Kutak Rock as it gained information about Sharoff s business, as KPERS con tends, Kutak Rock discharged the duty by communicating with R & K, the investment professional.
It does not follow from the legislature’s codifying the prudence standard for KPERS’s investments that attorneys hired to document an investment transaction and to make due diligence inquiries about the business have a duty to determine the financial wisdom of the investment. The scope of the attorney’s duty in the circumstances of this case is commensurate with his or her undertaking.
KPERS’s theory of liability for a breach of trust is that R & K breached its fiduciary duty to KPERS by making the imprudent Sharoff investment. According to KPERS, because Kutak Rock knew facts that would lead a reasonably intelligent and diligent party to inquire whether R & K was committing a breach of trust by making the investment, it participated in the breach of trust.
The district court concluded that KPERS’s allegations were insufficient to establish that Kutak Rock participated in a breach of trust. The district court looked to Gillespie v. Seymour, 14 Kan. App. 2d 563, 796 P.2d 1060 (1990) (Gillespie I), for the elements of participation in a breach of trust. Two elements are articulated in Gillespie I. The first element is knowledge of the breach or “the legal equivalent” of knowledge of the breach. The second element is “any act whatsoever” that furthers the breach. 14 Kan. App. 2d at 569-70. The district court also noted that in Gillespie I the Court of Appeals discussed the theory of participation in a breach of trust by quoting Bogert, Trusts and Trustees § 901 (2d ed. 1982):
“ ‘The wrong of participation in a breach of trust is divided into two elements: (1) an act or omission which furthers or completes the breach of trust by the trustee, and (2) knowledge at the time that the transaction amounted to a breach of trust, or the legal equivalent of such knowledge.
‘Mere knowledge by a third person that a breach of trust is in process, coupled with a failure to notify the beneficiary or to interfere with the action of the trustee, does not amount to a participation in a breach. Such conduct is inaction which may be reprehensible under the highest standards of ethics, but no legal duty has been violated. On the other hand, if the third party by any act whatsoever assists the trustee in wrongfully transferring the benefits of the trust property to the trustee, another person, or the alleged participant, or aids in destroying or injuring that property, there has been conduct upon which liability can be predicated, if the requisite state of mind existed in the defendant.
‘In order that the third party be hable as a participant, it is not necessary to show that he benefited as a result of the transaction.’ ” 14 Kan. App. 2d at 569-70.
The district court accurately observed that in consequence of courts’ applications of the elements of participation in a breach of trust to widely vaiying theories of liability, the analysis has become murky. The precise nature of an act giving rise to liability is the controversy. Although noting the “any-act-whatsoever” language from Gillespie I, the district court séttled on the following principles — participation must be active and substantial and more than mere negligence.
The district court’s analysis centered on the nature of the act required, and unless that analysis is faulty, we need not address the first element of the cause of action — knowledge of the breach or “the legal equivalent” of knowledge of the breach.
The question is whether Kutak Rock performed any act that furthered the breach. Based on its reading of Restatements and case law, the district court concluded that the participation must be active and substantial and more than mere negligence. The district court cited Gillespie I for each of the qualifications on the act and Gillespie IV with regard to the qualification of more than mere negligence: Measuring Kutak Rock’s actions by this standard, the district court concluded that Kutak Rock was entitled to summary judgment on the participation in a breach of trust count. The district court stated:
“If this is the standard in Kansas, Kutak Rock cannot be hable. There is no evidence in the record that Kutak Rock: concealed information which might be necessary for KPERS to make its determinations as to the prudence of the investment; provided any false or misleading information; encouraged the investment; assisted Reimer and Koger with Reimer and Koger’s due diligence [financial] investigation or in any other way acted to further the decision that Sharoff was a prudent investment.
“Even short of collusion, there is no evidence that Kutak Rock substantially assisted Reimer and Koger or in any way assisted Reimer Koger in making the due diligence [financial] investigation. Further, in this Memorandum Decision and Order the Court has found that Kutak Rock was not negligent, much less that they were grossly negligent, acted willfully, wantonly, or intentionally, or in another way engaged in conduct with is ‘more tha[n] mere negligence.’
“In summary, there is no evidence that Kutak colluded with Reimer and Koger; that they had any knowledge, actual or constructive, of any of these facts which underlie KPERS’ theory that Reimer and Koger committed a breach of trust; nor that they were grossly or wantonly negligent or acted intentionally.”
On appeal, KPERS cites a number of foreign cases for the proposition that the proof required of plaintiffs should not be more onerous for attorneys who represent clients who breach a trust than for other defendants. With regard to the standard expressed in Kansas cases, KPERS correctly points out that there is some variation in language from one Kansas case to another. KPERS states that this court has required substantial assistance in York v. InTrust Bank, N.A., 265 Kan. 271, 962 P.2d 405 (1998), and State ex rel. Mays v. Ridenhour, 248 Kan. 919, 811 P.2d 1220 (1991).
According to KPERS, Kutak Rock’s conduct tops even the substantial assistance test. KPERS would have the court agree with its contention by measuring Kutak Rock’s actions against a six-factor test set out in Ridenhour. The Ridenhour test was not intended to measure whether assistance was substantial, and, indeed, one of its factors is the amount of assistance rendered. The Ridenhour test was formulated to detect aiding and abetting violations of a securities statute. The six parts consist of five parts Restatement (Second) of Torts § 876 (1977) and one part federal securities law. There is no good reason for the court to use the Ridenhour test to assess whether assistance in a breach of trust is substantial.
Regarding the matter of substantial assistance, the district court noted that the Court of Appeals in Gillespie I quoted Bogert, Trusts and Trustees § 901, which states: “[I]f the third party by any act whatsoever assists the trustee in wrongfully transferring the benefits of trust property to the trustee . . . there has been conduct upon which liability can be predicated, if the requisite state of mind existed in the defendant.” 14 Kan. App. 2d at 570. The district court also noted that the Court of Appeals in Gillespie IV seemed to suggest that a professional’s liability can only be predicated on collusion. Here is the Court of Appeals’ language that led to the district court’s observation:
“The [district] court also found Burdge [the accountant] was not hired to give investment advice. The fact the investments were imprudent did not mean he was responsible for them. He was hired to prepare the taxes — that he did. If he conspired with Seymour, Jr. to hide the extent of the imprudence, Burdge committed a tort.” 19 Kan. App. 2d at 769.
Substantialness, which seems to require formulation of a test of its own on account of the lack of definition in the term, is not a good measure of the conduct at issue here. A better measure of an act that would satisfy the action element of participation in a breach of trust is the measure of the duty undertaken by defendant, just as for breaches of express and implied duty. Precedent for the standard is found in Gillespie IV, where the Court of Appeals reversed the district court’s decision against the accountant on conspiracy and breach of trust theories. The Court of Appeals stated:
“An accountant has a duty to do that which he or she is hired to do. One court has gone so far as to say an accountant has no legal duty to inform trust beneficiaries that a trustee is committing a breach of trust. Painters of Phil. D. Coun. v. Price Waterhouse, 879 F.2d 1146, 1153 n. 9 (3d Cir. 1989). In Gillespie, this court appeared reluctant to extend an accountant’s responsibility when it accepted the reasoning of In re Gas Reclamation, Inc. Securities Litigation, 659 F. Supp. 493 (S.D.N.Y. 1987) and Latigo Ventures v. Laventhol & Horwath, 876 F.2d 1322 (7th Cir. 1989). In each of those cases, the deciding court held the accountants’ duties could not be expanded beyond the duties owed the client.
“Ultimately, the block investment scheme achieved its purpose — tax avoidance. The costs of the savings probably outweighed the benefits. Absent any indication Burdge was responsible for the decision to malee the investment, there was no breach of a legal duty.” 19 Kan. App. 2d at 769-70.
Here, the defendant is a law firm rather than an accountant, and the purpose of the investment was not to avoid taxes. In other respects, the circumstances are similar. Likewise, absent evidence that Kutak Rock was responsible for the decision to make the investment, there was no breach of a legal duty.
In summary, KPERS sought investment advice from R & K with the aim of satisfying the prudent investment requirement of K.S.A. 74-4921(4) (fCnsley 1985). The duty delegated by KPERS to R & K was to secure prudent investments. R & K did not delegate that duty to Kutak Rock. R & K hired Kutak Rock to conduct due diligence inquiries into Sharoff s business organization and opera tions. No authority has been cited which would require Kutak Rock, which had been hired by KPERS’s agent to perform particular duties in furtherance of the overall investment transaction, to develop its understanding of the transaction beyond its own undertaking. The scope of the attorney-client relationship between Kutak Rock and R & K was set out in the engagement letter. KPERS’s trustees establish investment policies, and R & K was the investment manager for KPERS and authorized to malee investments. There is no evidence that Kutak Rock agreed to or assumed any duty other than set out in the engagement letter. Kutak Rock’s duty as counsel for R & K did not include the duty to determine if the Sharoff investment was prudent. Nor did Kutak Rock perform any act that furthered a breach of trust by R & K.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Six, J.:
Defendant Arthur Albright appeals his premeditated first-degree murder conviction and his hard 40 sentence. K.S.A. 21-3401(a); K.S.A. 2001 Supp. 21-4635(c); K.S.A. 2001 Supp. 21-4638.
Our jurisdiction is under K.S.A. 22-3601(b)(l) (conviction for an off-grid crime).
The issues are whether: (1) the prosecutor committed misconduct during closing argument, and (2) the district court abused its discretion by: (a) admitting cross-examination evidence of Al-bright’s prior bad acts and (b) denying Albright’s motion to recall the jury.
Albright also questions the constitutionality of his hard 40 sentence and the constitutionality of K.S.A. 22-3220 (defense of lack of mental state). Neither constitutional claim was raised below. The challenge to the hard 40 sentence is based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Albright’s trial commenced on May 15, 2000. The guilty verdict was returned on May 18, 2000. Apprendi was filed June 26, 2000. Albright’s hard 40 claim is controlled by State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). Albright urges us to overrule Conley. We decline to do so.
Albright’s claim of unconstitutionality leveled at K.S.A. 22-3220 is not linked to Apprendi. We find no compelling reason to reach the K.S.A. 22-3320 constitutional question in this opinion.
Finding no reversible error, we affirm.
FACTS
Around 1:30 p.m. on Friday, January 29, 1999, Calvin Flanders met Lucille Noelle Weeden, the victim, at her job appointment in Wichita. He was in his red truck. They drove to pick up her paycheck, then on to a pawnshop, where she retrieved a ring and a “boom box.” Weeden lived in an apartment house. Albright lived in the same house, in a different apartment. When Flanders took Weeden home, he saw Albright standing on the front porch. Flanders lost sight of Weeden as he drove away. She was about two steps past Albright when he last saw her.
Around 2:15 that afternoon, Latashia Hankins was sitting in front of her window in the house next door. She saw Weeden exit from a red truck. A short time later, Hankins heard a lady ciy or scream. The sound came from the south, where Weeden’s apartment was located. Moments later, Hankins saw Albright walking north past her house. He had a tan jacket across his left arm and held his right arm near his stomach. Hankins testified that Albright’s hair “was all over his head” and there was blood on the sleeve of his jacket. She said he was “moving kind of fast.” Hankins lost sight of Albright as he headed west on Orme Street.
While driving north on Broadway, Pamela Finstad saw Albright at the comer of Broadway and Orme Street. Albright’s hair was messed up, his shirt was untucked, and he seemed to be in a huny. Findstad testified that Albright appeared to carry a “bundle of something.”
Finstad lived in the same apartment house as Weeden and Al-bright. As she approached the front door, she saw a body in the entryway. She testified that it looked like somebody had just “degutted a person.” Finstad told her husband Norman what she had seen. Norman recognized Weeden’s body. Keys were hanging in the door to Weeden’s apartment. A boom box and glasses lay near by. The door leading upstairs to Albright’s apartment was open 4 to 6 inches. Police found a trail of blood from Weeden’s porch to the intersection of Broadway and Orme.
Forensic experts concluded that Weeden sustained more than thirty stab wounds to her internal organs resulting from multiple movements involving significant force. When presented for autopsy, some of Weeden’s small bowel was outside the abdominal cavity. Weeden’s injuries were consistent with the insertion of a small knife and hand into the body. There were defensive wounds on her hands. According to a forensic pathologist, Weeden was conscious during the attack, but the pathologist could not determine for how long. Weeden’s hands were smeared with blood and brown fecal-looking matter.
Two days after the murder, Albright was found in the area near a drainage ditch. He wore dark gloves covered with blood and dirt, a dirty tan jacket, bloody jeans, tennis shoes, and a dark cap. Police found a small pocket knife in one of his pockets. When Albright’s gloves were removed, police discovered a rather large laceration on the middle of his right hand and on his right index finger. At different times, he told police and medical personnel that he had been cut with a knife on Friday night or that his injuries were caused by a fishing hook. He told police that he was fishing. However, he had no fishing equipment. He also told police that his name was Ron D. Sanson. He gave various social security numbers and was evasive about his address. He carried a Kansas identification card bearing his name. Albright was taken to a hospital, where he gave his correct name.
The measurement of one stab wound to Weeden’s liver was consistent with Albright’s knife. A forensic expert determined that it was the largest blade on the pocket knife that left marks on Wee-den’s breastplate tissue. A DNA analysis revealed profiles consistent with a blood contribution by both Albright and Weeden on Albright’s jacket, his pocket knife, and on Weeden’s jeans, jacket, and fingernails. Blood from the blood trail was also consistent with Albright’s DNA profile.
Before trial, Albright filed a notice of intent to rely on a defense of diminished capacity or insanity. The district court ordered a competency determination in June 1999. In October 1999, Al-bright was found to be incompetent to stand trial and was ordered to be committed to Lamed State Security Hospital (Lamed) for treatment. A second motion to determine competency was filed in April 2000. Albright was found competent to stand trial.
At trial, the defense presented the testimony of Dr. William Logan, a forensic psychiatrist. Dr. Logan was retained to determine whether Albright was competent to stand trial and to render an opinion concerning Albright’s mental state at the time of the murder. He testified that Albright was suffering from “schizophrenia, a paranoid type, that . . . had been widely reflected in [Al-bright’s] records going back over 20 years.” There were periods of time where Albright was both medicated and hospitalized. At one point, he was kept in a hospital for as long as 7 years. According to Dr. Logan, paranoid schizophrenia is probably “one of the . . . more severe mental illnesses that you can have. It’s characterized by hallucinations or in some individuals a strong preoccupation with illusion.” Dr. Logan testified that in recent years, Albright had developed the idea that people were coming into his apartment and tampering with things or taking things.
Regarding Albright’s mental condition at the time of the offense, Dr. Logan opined that Albright, who was not taking medication, was psychotic, suffering from paranoid schizophrenia, delusional, and paranoid. According to Dr. Logan, Albright could not think rationally about things that were going on around him; rather, “he would see them only in light of the preconceived ideas that people were purposely harassing him; he was being threatened.” Dr. Lo gan indicated that Albright’s mental condition affected his ability to reason and think rationally at the time of the offense.
On rebuttal, the State presented the testimony of Dr. William Levine, a psychiatrist. In Dr. Levine’s opinion, “[T]he way in which the assault was carried out could only have happened with a person intending to assault somebody. It wasn’t an accident.” Dr. Levine testified that because Albright would not reveal all of his thoughts, the doctor could not say to a reasonable degree of certainty that Albright intended to kill Weeden. However, Dr. Levine could say “that it was a deliberate attempt to cause great harm based on the act.”
Dr. Levine also testified that there was nothing about paranoid schizophrenia that would have prevented Albright from intending to kill Weeden. According to Dr. Levine, “Nothing about [Al-bright’s] disease would make it hard or difficult or impossible to premeditate anything.”
The juiy was instructed on premeditated first-degree murder and intentional second-degree murder, and it was given the option of deciding “not guilty” by reason of mental disease or defect. The jury found Albright guilty of first-degree premeditated murder. The district court imposed a hard 40 sentence. Albright now makes a timely appeal.
DISCUSSION
We first review Albright’s contention that the prosecutor, in discussing premeditation in her closing argument, committed misconduct requiring reversal. During closing arguments, the prosecutor told the juiy:
“Premeditation could be called planned. Someone could have a plan, and that would be premeditation. But as [defense counsel] explained to you and the Court instructed you, premeditation simply means to have thought the matter over beforehand. Premeditation can occur in an instant. I wanted to show you how premeditation had occurred. I didn’t have it in mind until just now how I was going to do it, but there (demonstrating). That’s how I decided to show you. It could happen that quickly. I decided to show you a certain act, hitting the podium. That was premeditation, and it occurred in an instant. That’s how quickly it can occur.” (Emphasis added.)
Albright acknowledges that he did not object to the prosecutor s comments. We do not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a claim of prosecutorial misconduct during closing argument where no contemporaneous objection is lodged. However, if in examining the claimed error we determine that the misconduct might have risen to a level of violating a defendant’s right to a fair trial, the claimed error will be considered. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999). We conclude that Albright’s closing argument claim qualifies for consideration; thus, the analysis of the effect of a prosecutor’s alleged improper remarks is a two-step process. First, we must decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, we must decide whether the remarks constitute plain error, that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial. McCorkendale, 267 Kan. at 278-79.
The State observes that during the first portion of the prosecutor’s closing argument, she said, “There is no time element to premeditation. I just have to prove that he had a chance to think about it.” Later, the prosecutor said, “You think about it, and you react. That’s premeditation.” At the end of her arguments, the prosecutor said:
“Ladies and gentlemen, you were told a variety of facts, but they coalesce actually very simply into a coherent set of facts. Your job is a serious one. Your duty, however, is simple. You must look at the facts, apply the law and determine the defendant’s mental state at the time. And based on all the facts you have, you must find the defendant guilty if you find whether based on a delusion or not, he acted intentionally and he thought about killing beforehand, and that’s what the facts show.”
The district court, in conformity with Pattern Instructions for Kansas (PIK) Crim. 3d 56.04(b) (premeditation), instructed the jury that “[premeditation means to have thought over the matter beforehand.” We have consistently approved this jury instruction. See State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000).
In State v. Moncla, 262 Kan. 58, 936 P.2d 727 (1997), we rejected the district judge’s inclusion of the phrase that premedita tion “may arise in an instant” in the jury instruction defining premeditation. Moncla concluded that the instruction did not constitute reversible error, although the addition of the phrase “it may arise in an instant” diminished the definition of premeditation and was inappropriate. 262 Kan. at 72.
We now turn to review our post-Moncla cases that have addressed a premeditation-misconduct contention similar to the one Albright advances here.
The State relies on State v. Gholston, 272 Kan. 601, 35 P.3d 868 (2001), to support its contention that the prosecutor’s statements here did not deny Albright a fair trial. Gholston was convicted of first-degree premeditated murder. During closing argument, the prosecutor said:
“ ‘To have thought the matter over beforehand, how long does it take to consider that I’m going to intentionally kill you? (Snaps finger.) It can be that quick. It’s not necessarily Hollywood, where we have the weeks of planning and you’ve seen those type [of] movies. In the State of Kansas, the law means the law, to have thought the matter over beforehand; and if you believe Gholston pulled the trigger, you know he thought the matter over beforehand.’ ” (Emphasis added.) 272 Kan. at 623.
We found that the Gholston prosecutor’s argument did not purport to be an abstract statement of the law. Under the facts, the shooting was clearly premeditated. We concluded that under the circumstances, the prosecutor’s statement was not reversible error. 272 Kan. at 623.
Albright contends that under State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001), the prosecutor’s comments here warrant reversal. In Holmes, the prosecutor, after informing the judge as to the law at the jury instructions conference, deliberately misstated the law to the jury. The deliberate misstatement in Holmes required reversal. 272 Kan. at 499-500. The Holmes prosecutor said, “ ‘Ladies and gentlemen, premeditation can occur in an instant. That’s the law in the State of Kansas.’ ” 272 Kan. at 497. We held that the district court’s failure to correct the prosecutor’s statement deprived Holmes of a right to a fair trial. 272 Kan. at 500. Holmes recognized that in Jamison, 269 Kan. at 573, we observed that the concept of “premeditation,” as defined in PIK 56.04(b), was more than the instantaneous, intentional act of taking another’s life. Holmes, 272 Kan. at 499.
The closing argument issue here is controlled by our reasoning in State v. Doyle, 272 Kan. 1157, 38 P.3d 650 (2002); State v. Wimbley, 271 Kan. 843, 26 P.3d 657 (2001); Gholston; and Jamison. Doyle involved a closing argument claim similar to the one Albright asserts here. The prosecutor in Doyle argued to the jury:
“ ‘Premeditation, as the Court instructed you, means to have thought about it beforehand. It does not mean that it had to be thought out beforehand two hours or one hour or a half an hour before the incident occurred. Something can be premeditated as soon as it happens.
“ ‘That is all that “premeditation” means. It can be formed at any point in time.’ ” 272 Kan. at 1163.
During deliberations, the Doyle jury inquired: “ Is there a specific amount of time before a crime is committed that “premeditated” is applied?’ ” The district court responded in writing, “ No.’ ” 272 Kan. at 1163.
We affirmed Doyle’s conviction by distinguishing Holmes, observing:
“Under the Holmes facts, the prosecutor’s deliberate misstatement of the law regarding premeditation was found to be reversible error.
“Here, there is no indication that the prosecutor purposefully misstated the law. Furthermore, there is evidence of premeditation.. . .
“The jury instruction in this case was a correct statement of the law on premeditation. The facts clearly support a finding that the murder of Kubik was premeditated.” 272 Kan. at 1165-66.
In Wimbley, 271 Kan. 843, 849, the prosecutor argued in closing:
“Premeditation requires no specific time period. That’s what the law is. It doesn’t require any. It doesn’t say well, you have to think about it for 30 seconds, or five, or five hours or anything else. Premeditation can occur in an instant. It can be a thought. Just like that (indicating).” (Emphasis added.)
We said: “[W]ith regard to a nearly identical closing argument by the prosecutor in Jamison, we held that there was ‘a very real distinction between the argument of a prosecutor and the instruction of a trial court.’ ” Wimbley, 271 Kan. at 850.
Here, as in Jamison, Gholston, Doyle, and Wimbley, there was evidence of premeditation. We find that the prosecutor’s references to “an instant” in her closing argument were in error; however, the remarks do not constitute plain error, requiring reversal.
We repeat our recent admonition from State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230 (2002): “A discussion of PIK Crim. 3d 56.04(b) (premeditation) in closing argument should avoid any temptation to use a synonym to convey the suggestion of‘an instant’ without using the actual phrase.”
Albright’s Prior Conduct
Albright argues that the district court erred in allowing his witness, Dr. Logan, on cross-examination to testify regarding Al-bright’s prior conduct. This contention lacks merit.
The admission or exclusion of evidence is a matter of judicial discretion. We examine admission determinations under the abuse of discretion standard. See State v. Flourney, 272 Kan. 784, 802, 36 P.3d 273 (2001). The extent of cross-examination for purposes of impeachment also lies within the sound discretion of the district court. State v. Baacke, 261 Kan. 422, 431-32, 932 P.2d 396 (1997).
Before reaching his conclusions, Dr. Logan reviewed Albright’s previous hospitalization information, military records, some psychiatric records, family histoiy, police reports involving Weeden’s murder, witness statements, and police reports from past incidents. Regarding Albright’s mental condition at the time of Weeden’s murder, Dr. Logan testified that Albright was psychotic, delusional, and suffering from paranoid schizophrenia. According to Dr. Logan, Albright “couldn’t think about things that were going on around him rationally, . . . he would see them only in light of his preconceived ideas that people were purposely harassing him; he was being threatened.”
On cross-examination, the State questioned Dr. Logan about the information he had reviewed, including Albright’s:
(1) threatening to kill his family and shoot his mother,
(2) twice holding a gun to his mother’s head,
(3) breaking property around the house and punching holes in walls,
(4) hitting a desk top with a rifle butt,
(5) breaking windows,
(6) picking fights with his brothers and hitting his father,
(7) shooting his brother,
(8) assaulting a woman while at Lamed,
(9) stalking a woman and attacking a perceived rival suitor,
(10) being asked to leave a church community because of his obsessing over a female member of that community,
(11) hitting a black man in a laundromat in 1979,
(12) having a problem with black people and interracial couples,
(13) having swastikas decorating his automobiles,
(14) possibly suspected of taking shots at kids with a shotgun or rifle at some time,
(15) accosting a bus driver in 1990 and throwing snowballs and shouting racial epithets at the driver,
(16) attacking a man in a telephone booth in 1990 and accusing him of being an undercover officer,
(17) attacking someone in a park for no reason in 1995 (Dr. Logan clarified that in this instance it was Albright who actually summoned the police and reported that he had been punched in the face),
(18) hitting his apartment manager in 1997 after she wanted to evict him for allegedly threatening and assaulting other tenants, and
(19) threatening the same apartment manager that if Albright did not get his mail, she was going to get a .38 caliber lead injection.
Albright’s counsel made no objection until the State started questioning Dr. Logan about the police report involving the 1995 incident in the park (Item No. 17 on the above-numbered cross-examination list). Counsel objected to “the form of the question in having this particular witness testify as to the events in a police report.” Counsel said she did not “think it’s related to this examination or [Dr. Logan’s] conclusions as an expert as it relates to that police report.”
The prosecutor explained that her cross-examination was relevant to “state of mind.” The district court found that the questioning had some probative value as to the weight and credibility of Dr. Logan’s report. The district court also concluded that the questioning was relevant to show that, at least on this one occasion, Albright had contacted the police and sought their assistance.
Later, when the prosecutor was questioning Dr. Logan about the police reports involving Albright’s apartment manager in 1997, defense counsel again objected. Her objection was to the form of the question, to foundation, and to the details of police reports not being linked to Dr. Logan’s conclusions and diagnosis. The district court required the prosecutor to ask Dr. Logan about the specific report and whether he had relied upon it in drawing any of his conclusions.
After further questioning of Dr. Logan about the incidents involving the apartment manager, Albright’s counsel objected again, asserting that the prosecutor was “fading to relate this in any way to the mental examination” and was “attempting to use some 60-455 way to approach every bad act that’s in the reports . . . .’’At a bench conference, the district court said it looked like the prosecutor was “just doing a character assassination of bad acts” and expressed concern that “the prejudicial effect is outweighing the probative value.” The prosecutor argued that the prior bad acts related to Albright’s “prior state of mind.” She noted that Dr. Logan claimed that Albright was delusional at the time of the murder. She thought the incidents were relevant to show that Albright could act intentionally just like the day of the murder. The prosecutor argued that the facts relied upon by Dr. Logan could be interpreted differently.
An argument followed regarding K.S.A. 60-455. The district judge said he would have to give a limiting instruction on how the jury “can’t consider that evidence of other bad acts and crimes.” The prosecutor said she did not want to offer the evidence under K.S.A. 60-455; rather, the specific acts were used to test Dr. Logan’s credibility and to show the juiy the underlying facts upon which his opinion was based. The State did not file a pretrial K.S.A. 60-455 motion for the admission of such evidence. The district court commented that the prosecutor was “kind of shotgunning it” and told her to refer the doctor to the specific report and to ask him if he remembered it and if he used it to arrive at his opinions. If he did, then she could cross-examine the doctor about the report.
The defense requested PIK Crim. 3d 52.06 (proof of other crime — limited admissibility of evidence). At the instructions conference, Albright’s counsel said that she thought the parties were “in agreement regarding the 60-455 instructions, that the other bad acts goes to intent.” The district court gave the following jury instruction, in accordance with PIK Crim. 3d 52.06:
“Evidence has been admitted tending to prove that the defendant, Arthur R. Albright, committed crimes other than the present crime charged. This evidence may be considered solely for the purpose of proving the defendant’s intent.”
Albright disputes the admissibility of the specific-acts testimony. According to Albright, while his prior bad acts might have been relevant to Dr. Logan’s cross-examination about whether and how they figured into his diagnosis and conclusions, they were not relevant as isolated prior bad acts. Albright maintains that the State inappropriately attempted to show his propensity towards violence and that the manner in which the evidence was introduced was more prejudicial than probative.
The State argues that the evidence was admitted to show errors in Dr. Logan’s understanding of events upon which he based his opinion and to show the facts upon which he based his conclusions. As the State points out, the prosecutor may test the reasonableness of an expert’s opinion during a proper cross-examination. See Baacke, 261 Kan. at 431.
In State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980), we reviewed a similar cross-examination situation. Dargatz was convicted of incitement to riot and second-degree murder. On direct examination, defense counsel asked the examining psychiatrist whether Dargatz could have formed the intent to incite a riot. The psychiatrist said that “historically he’s gotten himself in trouble. I suppose, several times by impulsiveness and lack of judgment.” 228 Kan. at 330. Out of the hearing of the jury, the psychiatrist said he had considered prior crimes information that he had received from Dargatz’ mother. The district court found that Dargatz’ prior criminal behavior had been brought out during the direct examination and was within the scope of cross-examination. The district court also concluded that the prior crimes evidence was relevant to show intent, or the ability to form criminal intent, under K.S.A. 60-455. On cross-examination, the psychiatrist said he had taken into account the past criminal record in forming his opinion about Dargatz’ intent, and those crimes included the felonies of welfare fraud, giving a worthless check, burglary, and theft. Dargatz argued that this testimony was prejudicial and erroneously admitted into evidence.
We noted that the evidence of Dargatz’ prior crimes was improperly admitted under K.S.A. 60-455 since there was no similarity between the offenses mentioned in the psychiatrist’s testimony and inciting a riot. However, the evidence was admissible. Under K.S.A. 60-458, when an expert has given an opinion without specifying the data upon which the opinion was based, the underlying data is a proper subject of cross-examination. We also remarked that once an issue is raised on direct examination, the door is open. Cross-examination “ ‘may go into any phase thereof and may extend to the entire subject matter; it is not restricted to the identical details developed on direct examination or the specific facts testified to in chief.’ ” (Citations omitted.) 228 Kan. at 330-31.
Under the reasoning of Dargatz, the underlying data for Dr. Logan’s expert opinion was a proper subject of cross-examination. The prosecutor’s approach was initially questionable, but there was no defense objection until most of the prior acts were before the jury. A party must make a timely and specific objection to the admission of evidence at trial to preserve the issue for appeal. K.S.A. 60-404.
Once objections were made, the district court required the prosecutor to question Dr. Logan about the specific reports and whether he had relied upon the reports in arriving at his opinions. As for the jury instruction, PIK Crim. 3d 52.06, about which Al-bright complains, he requested the instruction. One who requests an instruction cannot on appeal complain of its use. See State v. Osbey, 238 Kan. 280, 284, 710 P.2d 676 (1985). We find no abuse of discretion in allowing the cross-examination testimony.
Albright’s Motion to Recall the Jury
Albright also contends that the district court erred by denying his motion to recall the jury. We disagree. According to Albright, while the parties were speaking with jurors after the trial, the foreman indicated that when considering first-or second-degree murder, the jury picked first-degree murder “so that [Albright] would get as much time as possible.” Albright moved to recall the jury for a determination of whether the jury improperly considered postconviction penalties in reaching its verdict. He alleged that the jury violated the district court’s instruction that the disposition of the case was a matter for the district court.
Our review of an order denying a motion to recall a jury is limited to whether the district court abused its discretion. State v. Jenkins, 269 Kan. 334, 338, 2 P.3d 769 (2000). A jury should not be recalled and questioned unless there is just cause to do so. A motion to recall should be granted only upon a showing of necessity. State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
The State argued that the mental processes by which a jury reaches its verdict should not be delved into by the district court. One of the prosecutors told the district court that he, too, heard the juror’s statement but “didn’t get the impression that that was the basis by which he reached his decision or any other juror did as well.”
In denying Albright’s motion to recall the jury, the district court noted that the jury was instructed that disposition was a matter for the court. The jury was also given the following instruction:
“If you find the defendant, Arthur R. Albright, not guilty solely because he at the time of the alleged crime was suffering from a mental disease or defect which rendered him incapable of possessing the required criminal intent, then he is committed to the state security hospital for safekeeping and treatment until discharged according to the law.”
The district court reasoned that “[t]he Court, if nothing else, opened the door for them to consider the effect of their verdict and properly so pursuant to PIK . . . .” The district court opined that Albright’s requested inquiry would violate K.S.A. 60-441, which states:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.” (Emphasis added.)
We agree. In State v. Franklin, 264 Kan. 496, 500, 958 P.2d 611 (1998), we said:
“ ‘Under these statutes [K.S.A. 60-444(a) and 60-441] we have held that a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at tire verdict or what reasoning personally led him or her to the final decision.’ [Citation omitted.]”
The district court did not abuse its discretion in denying Al-bright’s motion.
Albright’s Hard 40 Sentence
Albright argues that State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied, 532 U.S. 932 (2001), misread Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and, thus, was incorrectly decided. We are invited to overrule Conley and declare the hard 40 sentencing scheme unconstitutional. We decline the invitation. The basis of Albright’s argument is that in Conley, we improperly relied on McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986). Albright reasons that the Pennsylvania statute at issue in McMillan and the Kansas hard 40 sentencing scheme are not comparable. We have recently rejected this argument in State v. Roberson, 272 Kan. 1143, 1156, 38 P.3d 715 (2002). Albright’s argument fails.
The K.S.A. 22-3220 Constitutional Claim
Finally, Albright argues that K.S.A. 22-3220 (defense of lack of mental state) is unconstitutional under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, § 18 of the Kansas Constitution Bill of Rights, and Article 2, § 16 of the Kansas Constitution.
Albright did not raise his federal and state constitutional arguments at trial. When constitutional issues are raised for the first time on appeal, they are not properly before this court for review. We may consider such issues in exceptional circumstances. We have done so where the asserted error involves a strictly legal question that will be determinative of the case or where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Albright contends consideration of the K.S.A. 22-3220 constitutional issue in his case is necessary to serve the ends of justice. Although the issue is a legal one, his argument is not persuasive. K.S.A. 22-3220 became effective January 1, 1996. With the adoption of K.S.A. 22-3220, insanity and diminished capacity defenses were eliminated in Kansas. See State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000). K.S.A. 22-3220 has not only been discussed by this court in Jorrick, but also has been subjected to extensive discussion in legal periodicals. See, Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. & Pub. Poly 253, 254-55 (1999); Spring, Farewell to Insanity: A Return to Mens Rea, 66 J.K.B.A. 38, 45 (1997). We are not presented here with a new controlling ruling as in Apprendi. We find no exceptional circumstances that would convince us to depart from our traditional rule. We conclude the constitutionality of K.S.A. 22-3220 is not properly before us and will not be considered in Albright’s appeal.
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The opinion of the court was delivered by
Abbott, J.:
Appellants Roger Klein and Daniel Brenner opened brokerage accounts with L.T. Lawrence, a company based in New York now in bankruptcy. Klein managed both accounts. Oppenheimer & Co., Inc. (Oppenheimer), a clearing brokerage, cleared trades for L.T. Lawrence, which had no authority to clear trades itself. L.T. Lawrence sold unregistered securities through Oppenheimer to Klein and Brenner, and Klein and Brenner brought suit against individual agents of L.T. Lawrence and against Oppenheimer for violation of the Kansas Securities Act.
When they opened their accounts, Klein and Brenner had signed client agreements with Oppenheimer containing a choice of law provision stating that the laws of the State of New York would govern. Ruling on a motion for summary judgment, the district court stated that if Kansas law applied, Oppenheimer would be liable. The district court held, however, that the contractual choice of law provision was enforceable and that, under New York law, Oppenheimer was not liable. Therefore, the district court entered judgment for Oppenheimer. Klein and Brenner timely appealed the district court’s entry of judgment against them. This matter comes before us pursuant to a K.S.A. 20-3018 transfer.
The underlying facts of this case are uncontroverted. Brenner is a resident of Kansas City, Missouri, and Klein is a resident of Johnson County, Kansas. Brenner is a retired attorney who is in poor health, and his nephew, Klein, manages Brenner’s financial affairs. Both L.T. Lawrence and Oppenheimer were located in New York and were licensed as registered broker-dealers in Kansas.
In June 1996, Klein opened an individual account with L.T. Lawrence brokerage from his home in Kansas. In July 1996, Klein opened an account from his home in Lawrence on behalf of Brenner with L.T. Lawrence.
The purchase or sale of securities requires a series of complicated steps. In its opinion, the district court described the transactions involved in the exchange of securities as follows:
“A buyer first opens a brokerage account with a broker, who is the agent of the buyer. The broker has registered representatives who work with the buyer. An actual purchase of stock can occur in two ways: either the buyer calls his registered representative and tells him that he wants to buy a particular stock (an unsolicited transaction) or the registered representative calls the buyer and recommends a particular stock (a ‘solicited transaction’). Larger brokerage houses have a seat on the stock exchange and they buy directly for clients. Smaller brokerage houses do not have a seat on the exchange, so they contract with one of the larger houses which does have a seat, and the larger broker executes the purchase. The larger broker is known as the ‘clearing broker.’ ... A brokerage house like L.T. Lawrence is known as an ‘introducing broker.’ ”
Here, Oppenheimer acted as the clearing broker for L.T. Lawrence in accordance with a clearing agreement. Oppenheimer afforded L.T. Lawrence the operational capacity to clear trades at various stock exchanges and also provided administrative support for processing transactions and generating customer account records. Oppenheimer did not, however, solicit, recommend, or offer the sale or purchase of any of the securities purchased or sold by Klein and Brenner.
In their petition, Klein and Brenner alleged that they believed the accounts “were under the control of Oppenheimer and relied on its reputation in opening and maintaining the accounts.” The clearing agreement between Oppenheimer and L.T. Lawrence, however, mandated that L.T. Lawrence provide a disclosure statement to its customers entitled LTL Account Disclosure Statement. In pertinent part, that disclosure statement stated:
“I. Opeo is the New York Stock Exchange member correspondent for LTL with whom you opened your securities account. LTL is independent of Opeo and has retained Opeo to provide certain record keeping and operational services, which may include execution and settlement of securities transactions, custody of securities and cash balances and extension of credit on margin transactions. These services are provided under a written Clearing Agreement between Opeo and LTL ....
“II. Responsibilities of LTL
‘A. LTL has a general responsibility for servicing your securities account through its own registered representatives in accordance with its own policies and applicable securities laws and regulations.
‘C. LTL is responsible for any investment advice or recommendations for investment management services that may be provided to you and for determining whether particular types of transactions which may be recommended to you (e.g. margin, options, short sales) are appropriate for you.
‘D. LTL is responsible for knowing the facts about any orders for the purchase or sale of securities which you may authorize.
‘G. LTL is responsible for supervision of the activities of the individual registered representative who services your account and for the resolution of any complaints regarding the handling of your account.
‘H. In all of the. above matters relating to the servicing of your account, Opeo has no involvement and assumes no responsibility.
“III. Responsibilities of Opeo
‘A. In general, Opeo is responsible only for those services provided at the request or direction of LTL as contemplated by the Clearing Agreement.
‘B. Opeo will create computer based account records on your behalf in such name(s) and with such address(es) as LTL directs.
‘C. Opeo will process orders for the purchase, sale or transfer of securities for your account as LTL directs. Opeo is not obligated to accept orders for securities transactions for your account directly from you and will do so only in exceptional circumstances.
1. Opeo will provide to LTL written reports of all transactions processed for your account to assist LTL to supervise the handling of your account in accordance with regulatory standards to which LTL is subject.
‘TV. OPCO DOES NOT CONTROL, AUDIT OR OTHERWISE SUPERVISE THE ACTIVITIES OF LTL OR ITS REGISTERED REPRESENTATIVES OR EMPLOYEES. OPCO DOES NOT VERIFY INFORMATION PROVIDED BY LTL REGARDING YOUR ACCOUNT OR TRANSACTIONS PROCESSED FOR YOUR ACCOUNT NOR UNDERTAKE RESPONSIBILITY FOR REVIEWING THE APPROPRIATENESS OF TRANSACTIONS ENTERED BY LTL ON YOUR BEHALF.”
Oppenheimer mailed all of the correspondence, statements, and confirmations concerning the two accounts to Klein’s home in Kansas. This lawsuit arose after L.T. Lawrence, through Oppenheimer, sold Klein and Brenner unregistered securities. Klein and Brenner allegedly purchased 20,000 shares of International Nursing Services, Inc.; 109,400 shares of Ecotyre Technologies, Inc.; 15,000 shares of Idenet, Inc.; 20,000 shares of Nouveau International, Inc.; 10,000 shares of Aegis Consumer Funding; 50,000 shares of Eastwind Group; 20,000 shares of MetroGolf, Inc.; 10,000 shares of A Wts Ecotyre Technologies, Inc.; and 9,000 shares of QPQ Corp.
The sale of unregistered, nonexempt securities is prohibited under Kansas law by K.S.A. 17-1255, and is also prohibited by federal securities law. The stock purchases all occurred between June 1996 and January 20, 1997.
Before this litigation commenced, Klein and Brenner filed a request for arbitration. The arbitration claim was filed on July 22, 1997. In their statement of claim to the arbitration panel, Klein and Brenner alleged that “Oppenheimer has a history of clearing trades for many firms, like L.T. Lawrence, which have a history of abusive, high-pressure phone solicitations of penny stocks, some of whom have had their licenses revoked or have gone bankrupt. . . . Oppenheimer knew or should have known of the securities fraud perpetrated by L.T. Lawrence and is a knowing participant in the fraud.” On January 28, 2000, without deciding the merits of the arbitration, the panel granted Klein’s and Brenner’s motion to dismiss. The panel referred the parties to their remedies at law without prejudice to any available claims or defenses.
On June 10, 1999, Klein and Brenner filed a petition with the District Court of Johnson County, Kansas, naming Oppenheimer, John Bruni, Lawrence Principato, and Todd Edward Roberü as defendants. Bruni worked as a broker, Principato served as Chief Executive Officer, and Roberti was the President, Secretary and Treasurer of L.T. Lawrence. Klein’s and Brenner’s petition stated that “[a]s Lawrence is presently in bankruptcy, it is not a named Defendant.” Service was effected on Februaiy 18, 2000, 3 weeks after the dismissal of the arbitration claim.
In their petition, Klein and Brenner advanced two theories for recovery against Oppenheimer under Kansas law. First, they alleged that Oppenheimer aided and abetted L.T. Lawrence and Bruni in violating K.S.A. 17-1255 and was therefore liable under K.S.A. 17-1268(a). Klein and Brenner alleged alternatively that Oppenheimer was a broker-dealer who materially aided in the sale of unregistered securities in violation of K.S.A. 17-1268(b).
In his deposition, Gary Emmerich, Oppenheimer’s Director of Operations, testified that he personally investigated numerous client complaints of illegal sales against L.T. Lawrence. Emmerich stated that around the end of 1996 or early 1997, he began bringing client complaints about L.T. Lawrence to the attention of the legal department and others at Oppenheimer. Later, Oppenheimer made the decision to ask L.T. Lawrence to find another clearing broker. Emmerich testified that he received investor complaint letters against L.T. Lawrence alleging that L.T. Lawrence was a boiler room operation, that it ordered trades unauthorized by the customer, and committed possible acts of “churning,” or excessive trading prohibited by rules of the NASD. However, Emmerich never alerted any regulatory authorities about the customer complaints received and stated that he knew of no one at Oppenheimer who made any regulatory filing with the Securities and Exchange Commission or alerted authorities.
Discovery also revealed that at the time Klein opened the two accounts with L.T. Lawrence, both he and Brenner signed client agreements with Oppenheimer containing a choice of law provision. The client agreement contains various provisions concerning short and long sales orders, transfer of funds, payment of loans on demand, maintenance of collateral, joint tenancy, interest charges, termination fees, etc.
The pertinent paragraphs of the client agreement state:
“In consideration of Oppenheimer & Co., Inc. (‘Oppenheimer’) accepting my account and agreeing to act as my broker, I agree to the following with respect to any of my accounts with you for extensions of credit and the purchase and sale of securities, put & call options, and other property. This agreement shall not become effective until accepted by you in your New York office. Acceptance may be evidenced by internal records maintained by [Oppenheimer],
“5. ORAL AUTHORIZATIONS. I agree that you shall incur no liability in acting upon oral instructions given to you concerning my accounts, provided such instructions reasonably appear to be genuine.
“18. APPLICABLE LAW AND REGULATIONS. This agreement and its enforcement shall be governed by the laws of the State of New York without giving effect to the choice of law or conflicts of law provisions thereof. All transactions for my accounts shall be subject to the regulations of all applicable federal, state and self-regulatory agencies including but not limited to the Securities and Exchange Commission, the various securities and commodity exchanges, the Municipal Securities Rulemaking Board, the NASD, the Board of Governors of the Federal Reserve System and the constitution, rules and customs of the exchange or market (and its clearing house, if any) where executed. . . .
“21. SEVERABILITY. If any provision of this agreement is or becomes inconsistent with any applicable present or future law, rule or regulation, that provision will be deemed rescinded or modified in order to comply with the relevant law, rule or regulation. All other provisions of this agreement will continue and remain in full force and effect.”
Klein filed an affidavit with the Johnson District Court stating that in January 1997, a trade of 9,000 shares of QPQ Corp. stock was identified as “unsolicited” on the trade confirmation statement from Oppenheimer. Klein, however, stated that “[t]here is no question in my mind that this trade was, in fact, solicited.”
According to Klein’s and Brenner’s calculations, the statutory damages for the sale of unregistered securities would total $1,022,998.07. The district court, however, observed in its memorandum opinion that the facts which would definitively fix the amount of damages remain in dispute, largely due to certain affirmative defenses available to Oppenheimer.
After discovery, all parties moved for summary judgment. The district court conducted a hearing on the parties’ cross-motions for summary judgment on April 12, 2001. The Honorable Janice D. Russell, Judge of the District Court of Johnson County, filed a memorandum opinion. In that opinion, Judge Russell remarked that the issue of the liability of a clearing broker for the sale of unregistered securities appeared to be a case of first impression in Kansas.
The memorandum opinion reached several conclusions of fact and law. First, the district court found that Klein’s and Brenner’s claims were not barred by the statute of limitations due to the tolling provision of K.S.A. 5-515. This finding has not been appealed. Second, the district court found that K.S.A. 17-1268(d) did not appear to prohibit the choice of law provision in the parties’ contract. Therefore, the court determined that the choice of law provision in the client agreement was enforceable and held that New York law applied. Third, the district court found that under New York law, Oppenheimer, acting as a clearing broker, was not liable for the sale of unregistered securities. The court characterized Oppenheimer’s involvement as “nothing more than ministerial,” and held that since “Oppenheimer was not involved in any of the plaintiffs’ decisional process,” it was not hable to Klein and Brenner under New York law.
The opinion of the district court did not end at that point, how-, ever. Instead, the court provided additional analysis of the liability of Oppenheimer under Kansas law, ruling that under Kansas law, Oppenheimer would be hable for the sale of unregistered securities.
On June 20, 2001, a journal entiy of judgment was filed in favor of Oppenheimer and against Klein and Brenner. On July 3, 2001, Klein and Brenner filed their timely appeal from the judgment of the district court.
For their first assertion of error, Klein and Brenner argue that the district court’s decision to uphold the choice of law provision in Oppenheimer’s standard form agreement ignores Kansas law and is contrary to this state’s strong public pohcy favoring the protection of investors.
“The standard of review for a motion for summary judgment is well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]” Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000).
The facts on appeal are uncontroverted. We must decide whether, as a matter of law, the district court correctly entered judgment for Oppenheimer based on the language found in the client agreement.
“Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. [Citation omitted.] The interpretation and legal effect of written documents are matters of law upon which our standard of review is unlimited. [Citation omitted.]” City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998).
The State of Kansas passed the first blue sty laws in the nation in 1911. See L. 1911, ch. 133, sec. 1; L. 1913, ch. 141, sec. 1.
“The first legislative attempts to regulate securities transactions were effected on the state level, with the first general securities law being said to have been enacted by the State of Kansas in 1911, and with 48 jurisdictions having enacted such statutes by 1933. These statutes were said to be enacted to stop the sale of stock in fly-by-night concerns, visionary oil wells, distant gold mines, and other fraudulent exploitations. A similar description of the early legislative purpose is that such acts were aimed at ‘speculative schemes which have no more basis than so many feet of blue sky/ and this description has had a lasting influence in that state securities acts are commonly referred to as ‘blue sky laws.’ ” 69A Am. Jur. 2d, Securities Regulation-State § 1, p. 759 (1993).
Twenty-two years later, Congress passed important federal laws designed to regulate securities and protect the public. See Securities Act of 1933,15 U.S.C. § 77a et seq. (2000). Federal securities laws do not act to preempt state regulation, however. Instead, federal statutes expressly indicate that nonconflicting state regulation of securities is allowed. “Section 18 of the Securities Act of 1933 . . ., § 28 of the Exchange Act, and § 18a of the Investment Advisers Act, provide clear and unequivocal congressional expression'not to preempt state securities laws, and these savings provisions are not limited to state laws in effect at the time of passage of federal laws.” 69A Am. Jur. 2d, Securities Regulation — State § 13, p. 772 (1993).
“It was clearly the intention of Congress to leave the States free to exercise such regulatory control over the sale of securities as does not conflict with the provisions of the Federal Act, and, in the absence of such a conflict, it is contemplated that the States and the Federal government shall exercise concurrent jurisdiction in this field.” Travelers Health Ass’n v. Com., 188 Va. 877, 897, 51 S.E.2d 263 (1949), aff'd 339 U.S. 643 (1950).
Therefore, no federal preemption issue is presented which might preclude the application of Kansas law.
In order for a state to assert jurisdiction, however, it must do so in a constitutionally permissible manner.
“In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause, this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. [Citation omitted.] In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair [citation omitted], the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Allstate Ins. Co. v. Hague, 449 U.S. 302, 308, 66 L. Ed. 2d 521, 101 S. Ct. 633 (1981).
One legal scholar has remarked that “to justify application of forum law the Supreme Court only requires contacts with the forum state sufficient to create a state interest, even if another state has a materially greater interest. The Court will not weigh interests, it will just find them.” Friedler, Party Autonomy Revisited: A Statutory Solution to a Choice-of-Law Problem, 37 Kan. L. Rev. 471, 500 (1989).
This court has likewise observed that “[a]s long as Kansas has ‘ “significant contact or significant aggregation of contacts” ... to ensure that the choice of Kansas law is not arbitrary or unfair,’ constitutional limits are not violated. [Citation omitted.]” Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990) (quoting Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 [1984], rev'd in part on other grounds 472 U.S. 797, 821-22, 86 L. Ed. 2d 628, 105 S. Ct. 2965 [1985]).
Under the facts of this case, there are sufficient minimum contacts with both New York and Kansas to establish jurisdiction in either state. Oppenheimer was located in New York at all times relevant to this lawsuit. The district court found that “all offers and sales of these securities were directed to Mr. Klein in the state of Kansas and received by him in Kansas when he was physically present in the state. All communications, statements and confirmations were received by Mr. Klein in the state of Kansas.5’ Therefore, in the event that die choice of law provision is unenforceable, the application of Kansas law over New York law would not present constitutional concerns.
The next step in our review is to determine whether an actual conflict exists between the laws of New York and the laws of Kansas.
In Shutts v. Phillips Petroleum Co., 240 Kan. 764, 767, 732 P.2d 1286 (1987), cert. denied 487 U.S. 1223 (1988), this court wrote that “if the law of Kansas [is] not in conflict with any of the other jurisdictions connected to the suit, then there [is] no injuiy in applying the law of Kansas.” In other words, if the outcome of this dispute would be the same under the laws of New York as under the laws of Kansas, the case presents a “false conflict.” “Where there is no difference between the laws of the forum state and those of the foreign jurisdiction, there is a ‘false conflict and the court need not decide the choice of law issue.” Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994).
Here, Klein and Brenner advanced two theories for recovery under Kansas law: aiding and abetting another in the sale of unregistered securities in violation of K.S.A. 17-1268(a), and materially aiding in the sale of unregistered securities in violation of K.S.A. 17-1268(b). Kansas statutory law plainly imposes civil liability on “[a]ny person who offers or sells” an unregistered, nonexempt security, and holds “every broker-dealer or agent who materially aids in the sale” jointly and severally liable. K.S.A. 17-1268(a) and (b). In addition, Kansas statutes authorize the person buying the security to “sue either at law or in equity to recover the consideration paid for the security, together with interest at 15% per annum from the date of payment, costs, and reasonable attor ney fees, less the amount of income received on the security ... or for damages.” K.S.A. 17-1268(a).
Here, the district court concluded that “under New York law, Oppenheimer, as the clearing broker, has no liability for the sale of unregistered securities to [Klein and Brenner].” The district court justified its conclusion by citing two cases: Katz v. Financial Clearing & Services Corp., 794 F. Supp 88 (S.D.N.Y. 1992), and Connolly v. Havens, 763 F. Supp. 6 (S.D.N.Y. 1991).
The State of New York’s blue sky laws are encompassed in the Martin Act, N.Y. Gen. Bus. Law, Art. 23-A, § 352 et seq. (McKinney 1996). “The Martin Act ‘prohibits various fraudulent and deceitful practices in the distribution, exchange, sale and purchase of securities,’ [Citation omitted.] ‘but does not require proof of intent to defraud or scienter.’ [Citation omitted.]” Cromer Finance Ltd. v. Berger, 2001 WL 1112548, *3 (S.D.N.Y., Sept. 19, 2001). The Act authorizes the attorney general to regulate and enforce New York’s state securities laws, and to redress harm suffered by individual investors. See People v. Landes, 600 N.Y.S.2d 292, 294, 192 App. Div. 2d 1 (1993) aff'd 84 N.Y.2d 655, 621 N.Y.S.2d 283, 645 N.E.2d 716 (1994).
In CPC International Inc. v. McKesson Corporation, 70 N.Y.2d 268, 276, 519 N.Y.S.2d 804, 514 N.E.2d 116 (1987), the New York Court of Appeals discussed the Martin Act. The McKesson court stated:
“In all the other States, except one, the Legislature has expressly recognized a private civil action for violations of the corresponding provision. Under the Martin Act, however, no private action has been expressly authorized. A majority of this court now holds that there is no cause of action impliedly created under section 352-c.” 70 N.Y.2d at 275-76.
In Granite Partners L.P. v. Bear, Steams & Co., Inc., 17 F. Supp. 2d 275, 291 (S.D.N.Y. 1998), the court confirmed: “It is well established that there exists no private right of action for claims that are within the purview of the Martin Act.” (citing Vannest v. Sage, Rutty & Co., Inc., 960 F. Supp. 651, 657 n.6 [W.D.N.Y. 1997]).
In addition to limiting an individual’s private right of recovery, the Martin Act fails to impose strict liability for the sale of unregistered securities. See N.Y. Gen. Bus. Law, Art. 23-A, § 352 et seq. (McKinney 1996). Indeed, New York state securities laws only call for the registration of those securities that are distributed intrastate.
“All jurisdictions purporting to have adopted the Uniform Securities Act or the Revised Uniform Securities Act, except the District of Columbia, contain provisions calling for the registration of securities under certain conditions, although the complexity, procedure, and terminology vary greatly from one jurisdiction to another. A few of the jurisdictions, of which New York is a notable example, require registration only of intrastate distributions.” 69A Am. Jur. 2d, Securities Regulation — State § 74, p. 827 (1993).
Because Kansas statutes explicitly authorize a private right of redress for the sale of unregistered securities while New York state law does not, and because New York law only requires the registration of intrastate securities, the district court correctly concluded that this dispute would not result in the same outcome in both jurisdictions. It is obvious to us that this case does not present a false conflict. Therefore, we must determine which jurisdiction’s laws should govern.
Klein and Brenner contend that the district court erred when it found the choice of law provision in Oppenheimer’s standard form agreement determinative. First, they contend that because Kansas follows traditional choice of law rules as reflected in the Restatement (First) of Conflict of Laws (1934), choice of law provisions in contracts are unenforceable, especially when contrary to the public policy of the state. Here, they maintain that the court failed to heed the long-established public policy of the State of Kansas for the protection of investors. Second, Klein and Brenner contend that the district court’s decision is in contravention of the statutory nonwaiver provision found in K.S.A. 17-1268(d). Finally, they assert that other state courts with similar securities regulation statutes have held in these circumstances that choice of law provisions must yield to the pubic policy of the forum states’ securities law.
Klein and Brenner contend that due to the strong public policy of the State of Kansas for the protection of investors, this court should refuse to enforce the choice of law provision in Oppenheimer’s standard form agreement. The first prong of their assertion is that under the Restatement (First) of Conflict of Laws (1934), a choice of law provision must yield to Kansas law when enforcement of the contract under foreign law would contravene the public policy of Kansas.
“When addressing choice-of-law issues, the Kansas [appellate] courts follow the Restatement (First) of Conflict of Laws.” Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, Syl. ¶ 7, 38 P.3d 757 (2002). While Kansas courts have followed the Restatement (First) of Conflict of Laws, the Restatement (First) does not either bar or recognize contractual choice of law provisions. Kansas case law and the Uniform Commercial Code, however, recognize the principle of freedom to contract and, under most circumstances, permit parties to choose the law applicable to their agreement.
K.S.A. 84-1-105(1) provides that “when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties.” In the absence of an explicit statement of the parties’ choice of law, K.S.A. 84-8-110(b) and (e) provide guidance concerning choice of law issues involving securities intermediaries. Here, the client agreement specified that “[t]his agreement and its enforcement shall be governed by the laws of the State of New York,” so it is unnecessary for us to turn to choice of law provisions of the investment securities chapter of the Uniform Commercial Code.
Oppenheimer claims that the proper test for enforceability under Kansas law when parties have agreed to a contractual choice of law provision focuses on whether the chosen forum bears a reasonable relation to the state whose law is chosen. The genesis of the reasonable relation test is the Restatement (Second) of Conflict of Laws § 187 (1969).
In support, Oppenheimer cites Altrutech, Inc. v. Hooper Holmes, Inc., 6 F. Supp. 2d 1269 (D. Kan. 1998). There, the United States District Court for the District of Kansas wrote that “[f|ederal courts in Kansas routinely enforce the parties’ contractual choice-of-law provisions under Kansas choice-of-law rules. [Citation omitted.] Under Kansas law, the enforceability of a contractual choice-of-law provision turns on whether the forum selected bears a reasonable relation to the contract at issue. [Citation omitted.]” 6 F. Supp. 2d at 1273. In Altrutech, Inc., the court found that Illinois bore a reasonable relation to the agreements between the parties and, therefore, held that Illinois contract law would govern as specified by the parties in the agreements. 6 F. Supp. 2d at 1273.
Oppenheimer also cites Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 810 P.2d 1154 (1991), as authority for the proposition that the reasonable relation test of the Restatement (Second) should apply here. In Cates, this court reviewed the validity of a choice of law clause applying Missouri law to a mortgage contract on Cates’ home in Kansas. In support of their position, the Cates cited from the Restatement (Second) of Conflict of Laws § 187 (1969):
“ ‘§ 187. Law of the State Chosen by the Parties.
‘(1) The law of the state chosen by the parties to govern their contractual rights and duties toill be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.
‘(2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice, or
(b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.
‘(3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law.’ (Emphasis added.)” 248 Kan. at 705-06.
Neither Altrutech, Inc. nor Cates considered the public policy exception to Kansas choice of law rules. Therefore, neither case is dispositive.
Where the parties to a contract have entered an agreement that incorporates a choice of law provision, Kansas courts generally effectuate the law chosen by the parties to control the agreement. In Davis v. Miller, 269 Kan. 732, 7 P.3d 1223 (2000), this court was presented with the issue of interpretation and enforcement of a postnuptial contract. There, the contractual agreement incorpo rated the legal requirements of the Kansas Uniform Premarital Agreement Act, even though that Act expressly excludes from its scope of coverage postnuptial agreements. After noting that both parties voluntarily signed the agreement with benefit of advice of counsel, we stated:
“Despite the legislative intent and the clear language of the KUPAA, parties can bind themselves to the provisions of an otherwise inapplicable act by incorporating choice of law provisions in an enforceable contract. As long as application of a statute or act is not contrary to public policy, a court will uphold application of an otherwise inapplicable statute or act.” 269 Kan. at 739.
As we stated in Davis, however, a well-recognized exception to the general rule allowing parties to incorporate their choice of law into the contract does exist. Where the application of the contracting parties’ choice of law provision engenders a result contrary to public policy, Kansas courts will not apply another state’s law. Likewise, the New York courts have refused to enforce the law of a foreign jurisdiction if doing so would result in a violation of New York public policy. See Haag v. Barnes, 9 N.Y.2d 554, 560, 216 N.Y.S.2d 65, 175 N.E.2d 441 (1961).
In Safeco Ins. Co. of America v. Allen, 262 Kan. 811, 941 P.2d 1365 (1997), a case involving the interpretation of an insurance contract, this court stated:
“In Baker, the Court of Appeals correctly noted that where there is a conflict of laws, Kansas follows the general rule that the law of the state where the insurance contract is made controls. See 14 Kan. App. 2d at 644. In St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 270, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990), we observed that Kansas follows the lex loci rule, not the ‘most significant relationship’ rule set out in Restatement (Second) of Conflict of Laws § 188 (1969). We did, however, state that Kansas would not apply the law of another state if it violated Kansas public policy, and quoted the following from Barbour v. Campbell, 101 Kan. 616, 617, 168 Pac. 879 (1917):
‘ “Ordinarily a contract which is valid where made is valid everywhere, but there is a well-known exception to that rule. Briefly stated, the exception is that where the contract contravenes the settled public policy of the state whose tribunal is invoked to enforce the contract, an action on that contract will not be entertained.” ’ 245 Kan. at 270.” (Emphasis added.) 262 Kan. at 822.
If a choice of law provision is contrary to the public policy of the forum state, it will not be enforced by the court. Instead, the court will apply the lex fori, or law of the forum. “ ‘The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred.’ [Citation omitted.]” Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990).
Klein and Brenner contend that the protections of the Kansas Securities Act are to be given a broad application and, therefore, to ignore public policy by enforcing tire contractual provision would contradict prior Kansas case law. While acknowledging that the issue of applying the public policy exception to the sale of securities is one of first impression in Kansas, Klein and Brenner cite the following cases in support of its application here: Barbour v. Campbell, 101 Kan. 616, 617, 168 Pac. 879 (1917); Hartford Accident & Indem. Co. v. American Red Ball Transit Co., 262 Kan. 570, 938 P.2d 1281, cert. denied 522 U.S. 951 (1997); and St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990).
The Barbour case arose after Willie Barbour, the divorced wife of Webster Barbour, filed suit in Kansas to enforce an oral promise unenforceable under the Kansas statute of frauds. According to Willie Barbour, Webster Barbour promised to pay her $500 to render nursing services to him during his last sickness, and Webster’s daughter, Maude Campbell, agreed to pay Willie this amount in the event that Webster died. Willie was a resident of Boise, Idaho, and offered proof that Campbell’s oral promise to pay her father’s debt would be enforceable in Idaho under that state’s statute of frauds. This court declared:
“Ordinarily a contract which is valid where made is valid everywhere, but there is a well-known exception to that rule. Briefly stated, the exception is that where the contract contravenes the settled public policy of the state whose tribunal is invoked to enforce the contract, an action on that contract will not be entertained. [Citations omitted.]” 101 Kan. at 617.
Thus, because this court found that the enforcement of an oral promise to pay $500 contravened the public policy of Kansas re- fleeted in our statute of frauds, such a contract could not be enforced in the courts of Kansas. 101 Kan. 616, Syl. ¶ 1.
In St. Paul Surplus Lines Ins. Co., Playtex appealed a trial court ruling in a declaratory judgment action holding that the public policy of Kansas precluded Playtex from recovering $10,000,000 from its excess insurers. The appeal involved the interpretation of an insurance contract and followed a products liability judgment of $10,000,000 in punitive damages assessed against Playtex. There, this court firmly indicated that once the decision is made to apply the public policy exception, there is no need for further conflict of laws analysis. 245 Kan. at 270.
“Certain states have now abandoned the lex loci rule in favor of the ‘most significant relationship’ test set forth in the Restatement (Second) of Conflict of Laws § 188 (1969). [Citations omitted.]
“We reserve consideration of the Restatement’s ‘most significant relationship’ test for a later day. Our choice of Kansas law rests on Kansas public policy. The interest of Kansas exceeds Delaware’s interest in the resolution of the instant controversy.” 245 Kan. at 270.
Noting that “[t]he objective of the policy is to prevent wrongful acts against citizens of the State of Kansas,” and that “the manufacturer could avoid the application of Kansas public policy where the manufacturer had contracted outside the State of Kansas . . . [resulting] in the uneven application of the public policy,” this court affirmed the trial court’s choice of Kansas law. 245 Kan. at 272-73.
Hartford Accident & Indem. Co., 262 Kan. 570, also involved a declaratoiy judgment action regarding whether an insurer was obligated to indemnify its insured for punitive damages. Red Ball contended that Indiana law applied because the insurance policy was issued there and asserted that under the lex loci rule used by Kansas courts, the trial court erred in applying Kansas law to deny insurance coverage for punitive damages. We disagreed, stating:
“Here, two Kansas residents were fatally injured in an accident that occurred in Kansas. The argument that application of Indiana law is necessary to maintain a uniform interpretation of the insurance policy Red Ball contracted with Hartford finds support in the traditional notions underlying the lex loci rule. However, the interest of Kansas exceeds Indiana’s interest in the resolution of the instant controversy. [Citation omitted.]” 262 Kan. at 575.
Although none of the cases mentioned above specifically apply the public pohcy exception to the sale of unregistered securities in Kansas, they instruct us that where a strong pubhc pohcy exists for the prevention of wrongful acts against citizens of the State of Kansas, this court will apply the lex fori, or law of the forum. This leads us to the question of the strength of Kansas pubhc policy in the area of securities regulation.
“Before courts are justified in declaring the existence of public pohcy, ‘ “it should be so thoroughly established as a state of pubhc mind so united and so definite and fixed that its existence is not subject to any substantial doubt.” ’ ” Riddle v. Wal-Mart Stores, Inc., 27 Kan. App. 2d 79, 86, 998 P.2d 114 (2000) (quoting Palmer v. Brown, 242 Kan. 893, 897, 752 P.2d 687 [1988]).
Kansas securities statutes make it “unlawful for any person to offer or sell any security in this state” unless such security is registered or fits one of the categories of exempt securities. K.S.A. 17-1255. It is well settled in this state that “[t]he purpose of the Kansas Securities Act (K.S.A. 17-1252 et seq.) is to place the traffic of promoting and dealing in speculative securities under rigid governmental regulation and control to protect investors, thereby preventing, so far as possible, the sale of fraudulent and worthless speculative securities.” Activator Supply Co. v. Wurth, 239 Kan. 610, Syl. ¶ 1, 722 P.2d 1081 (1986).
It seems clear to this court that a strong pubhc pohcy in favor of rigid governmental regulation of the sale of securities and the protection of investors exists and has been thoroughly established in both statutory and case law. Other states have so held.
Other states’ courts interpreting either identical or similar securities laws to those of Kansas have concluded that state public pohcy and nonwaiver provisions of state securities law required the disregard of contract provisions specifying the application of another state’s law.
This court has previously stated:
“The Kansas Securities Act is patterned after the Uniform Securities Act which is itself a copy of the Federal Securities Act of 1933. As a part of the web of the Uniform Acts throughout the nation and because of the common history and theories behind both the state and federal experience in the field of securities regulation, the Kansas Act should be developed by court decisions which are firmly grounded on prior state decisions and upon prior decisions of the federal courts, and the courts of our sister states.” State ex rel. Owens v. Colby, 231 Kan. 498, 501, 646 P.2d 1071 (1982).
Klein and Brenner advance the following cases: Boehnen v. Walston & Co., Inc., 358 F. Supp. 537 (D. S.D. 1973); Getter v. R. G. Dickinson & Co., 366 F. Supp. 559 (S.D. Iowa 1973); Hall v. Superior Court, 150 Cal. App. 3d 411, 197 Cal. Rptr. 757 (1983); Ito Corp. v. Prescott, Inc., 83 Wash. App. 282, 921 P.2d 566 (1996); and Hossain v. Rauscher Pierce Refsnes, Inc., 46 F. Supp. 2d 1164 (D. Kan. 1999).
In Boehnen, Lloyd Boehnen filed suit in the United States District Court for the District of South Dakota alleging common-law fraud, violations of the federal Securities and Exchange Act, and violations of South Dakota Blue Sky Laws. Boehnen moved for summary judgment on his claim that the defendant Walston & Co., a national securities dealer, had sold stocks to him that were not registered as required by the South Dakota Blue Sky Laws.
Just as in this case, Boehnen completed a customer agreement form that the defendant sent him which stated: “18. The provisions of this agreement shall in all respects be construed according to, and the rights and liabilities of the parties hereto shall in all respects be governed by, the laws of the State of New York.” 358 F. Supp. at 540. The court found that the crux of the issue was whether South Dakota law was applicable.
In concluding that New York law did not govern, the Boehnen court turned to persuasive authority and stated:
“Thus a stipulation by which the parties select the law to govern the contract is valid and will be given effect only if it is not contrary to public policy generally, or to the public policy of the forum, . . ., or in violation of a statute of the forum enacted for the protection of its citizens, . . . . 16 Am. Jur. 2d Conflicts of Laws Sec. 46 (1964). The purpose of the South Dakota Blue Sly Laws it to protect the public. [Citation omitted.] To permit the choice of law stipulation in question to control the determination of whether or not South Dakota law will apply, would be to provide an effective means of circumventing legislation designed to protect the citizens of South Dakota. This would clearly be against public policy.” 358 F. Supp. at 540-41.
In Getter, plaintiffs brought suit alleging that the defendant broker and its agents offered and sold unregistered securities to plaintiffs in violation of federal and Iowa state securities laws. There, defendants claimed that the Iowa Securities Act was not applicable due to a statement in the purchase agreement that New York law would apply. The contract provided: “This agreement is being executed and delivered and the shares and the options are being delivered in the State of New York, and this agreement shall be construed in accordance with, and governed by the laws of such State.” 366 F. Supp. at 574-75.
The Getter court framed this issue as whether the contract provision was a valid waiver of plaintiffs’ rights or remedies under the Iowa Securities Act. The court stated:
“Ordinarily, choice of laws provisions in contracts are valid except where they are contrary to State public policy. In the present case, we have a protective statute for purchasers of securities in the State of Iowa. This Court concludes as a matter of law that under the circumstances of this cause of action that the plaintiffs did not waive the protections of the Iowa Securities Act.” 366 F. Supp. at 574-75.
Because the court found that the plaintiffs were asked to sign a contract waiving future possible remedies under Iowa’s blue sky laws, the court held a choice of law provision such as this one was not enforceable, even in the absence of fraud, misrepresentation, or concealment. 366 F. Supp. at 375.
In Hall, the California Court of Appeals considered in a case of first impression whether a choice of law provision in a private securities agreement was enforceable. There, the limited partnership agreement provided it was to be governed by California law, but the subsequent stock transaction agreement (trading the interests of the limited partners for restricted shares of common stock in the general partner company) provided for the application of Nevada law and stipulated a Nevada forum. The agreement stated it was “deemed to have been made in and shall be governed by and enforced in accordance with the laws of the State of Nevada.” 150 Cal. App. 3d at 414.
Looking to California Securities Law § 25701, a nonwaiver statute employing the same language found in K.S.A. 17-1268(d), the court stated:
“California’s policy to protect securities investors, without more, would probably justify denial of enforcement of the choice of forum provision, although a failure to do so might not constitute an abuse of discretion; but section 25701, which renders void any provision purporting to waive or evade the Corporate Securities Law, removes that discretion and compels denial of enforcement.
“Similarly, we believe the right of a buyer of securities in California to have California law and its concomitant nuances apply to any future dispute arising out of the transaction is a ‘provision’ within the meaning of section 25701 which cannot be waived or evaded by stipulation of the parties to a securities transaction. Consequently, we hold the choice of Nevada law provision in this agreement violates section 25701 and the public policy of this state [citation omitted] and for that reason deny enforcement of the forum selection clause as unreasonable.” 150 Cal. App. 3d at. 418.
Thus, the California Court of Appeals held that the nonwaiver statutory language and public policy of California prevented enforcement of the choice of law provision.
In Hossain, an investor sued the clearing broker following the insolvency of the introducing broker to recover deposited funds. There, the introducing broker, Primeline Securities Corp., had entered a clearing agreement with the defendant clearing broker (RPR). The clearing agreement contained a choice of law provision stating that the “agreement shall be governed by and construed in accordance with the laws applicable to contracts made and to be performed within the State of New York." 46 F. Supp. 2d at 1167. Plaintiff Hossain sent checks totaling $151,000 payable to RPR to Primeline, who directed RPR to deposit the checks in an account for Nasir Siddiqui and Mohammad Hossaria. Primeline was thus able to convert Hossain’s funds to its own use and benefit. It was not until Primeline was in bankruptcy that Hossain discovered the loss of his funds.
Hossain filed suit alleging that, as the third-party beneficiary of the clearing agreement, RPR was hable to him for damages resulting from the breach of its contractual obligation. RPR’s position was that Kansas would not recognize a third-party beneficiaiy claim against a clearing broker, and even if such a claim were cognizable, a provision in the clearing agreement precluded third-party beneficiaiy claims.
Citing the authority of Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P.2d 265 (1972), the Hossain court found that Kansas law would recognize a third-party beneficiaiy claim arising from the clearing broker-introducing broker relationship. In addition, the court noted that the strict internal and external regulations imposed a duty on clearing brokers to take measures to safeguard customer funds. The existence of this duly led the court to classify the relationship that existed between RPR and Hossain as a fiduciary relationship. Looking to the clearing agreement, the court next considered whether the provision there disallowed plaintiff Hossain’s third-party beneficiaiy and fiduciary claims. The court stated:
“A clearing agreement which disavows the intent to create third-party beneficiaries is nearly nonsensical. An investor must be a beneficiary of a clearing agreement between the introducing broker and clearing broker. Without the intent to benefit the investor, there would be no need for the clearing agreement. As a matter of public policy, this clause renouncing any intent to benefit third parties must fail. A clearing broker cannot contract away duties owed to an investor which the law requires him to perform. Contracts that are contrary to law and public policy are void and unenforceable. [Citation omitted.]” (Emphasis added.) 46 F. Supp. 2d at 1168.
A 1999 law review article notes that clearing brokers are effectively immune from liability for clearing the trades of introducing brokers who are committing fraud and argues in favor of expanding clearing brokers’ liability for the wrongdoing of introducing brokers. See Note, Bar Baron at the Gate: An Argument for Expanding the Liability of Securities Clearing Brokers for the Fraud of Introducing Brokers, 74 N.Y.U. L. Rev. 1014 (1999). Clearing securities trades for introducing brokers is a highly profitable business for the clearing broker. 74 N.Y.U. L. Rev. at 1019. Moreover, the author states that the 1982 amendments to New York Stock Exchange rules permit “clearing brokers to take on all of the mechanics of trading while avoiding responsibility for monitoring customers’ accounts.” 74 N.Y.U. L. Rev. at 1020-21.
“The effect of these rule changes has been to make it extremely difficult for an investor to hold the clearing broker hable if the introducing broker commits fraud, mismanagement, or some other actionable behavior. Because clearing agreements normally stipulate that the introducing broker is responsible for monitoring the investor’s account, and the investors themselves must agree to this arrangement, investors are hard-pressed to claim that the clearing broker had a duty to monitor their accounts. Clearing brokers are thus able to contract out of liability. Since 1982, the courts, with rare exceptions, have held clearing brokers liable only upon a showing that they effectively controlled the daily activities of the introducing broker. The 1982 rule changes have also caused an explosion in the number of introducing brokers in the securities industry. Given that the introducing brokers are often judgment proof (unlike the ‘deep pocket’ clearing brokerage firms), defrauded customers are often left with no legal recourse.” 74 N.Y.U. L. Rev. at 1021-22.
In Hunter v. American Rentals, 189 Kan. 615, 618, 371 P.2d 131 (1962), this court considered whether American Rentals could avoid liability for negligence based on language contained in a contractual agreement between the parties. The Hunter court held that the contract was void and unenforceable, noting:
“Contracts for exemption for liability from negligence are not favored by the law. . . . The rule against such contracts is frequently limited to the principle that parties cannot stipulate for the protection against liability for negligence in the performance of a legal duty or a duty of public service, or where the public interest is involved or a public duty owed, or when the duty owed is a private one where public interest requires the performance thereof. (17 C.J.S., Contracts, § 262; 12 Am. Jur., Contracts, § 183.) ... It is, of course, clear that a person cannot, by agreement, relieve himself from a duty which he owed to the public, independent of the agreement. [Citation omitted.]
“ ... If an agreement binds the parties, or either of them, to do something opposed to the public policy of the state, it is illegal and absolutely void. [Citation omitted.] An agreement is against public policy if it is injurious to the interests of' the public, contravenes some established interest of society, violates some public statute, or tends to interfere with the public welfare or safety.” 189 Kan. at 617-18.
It would seem specious to hold that Kansas public policy demands payment of punitive damages by a tortfeasor without recourse to insurance funds, see St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 777 P.2d 1259 (1989), yet to allow a contractual choice of law provision to negate blue sky laws enacted to place the sale of securities under rigid regulation. Because Kansas’ public policy strongly favors the regulation of securities transactions for the protection of Kansas investors, we hold the choice of law provision to be invalid on public policy grounds. Thus, we overturn the district court’s decision and hold die choice of law provision in Oppenheimer’s standard form agreement invalid.
Klein and Brenner contend that, in its alternative ruling, the district court correctiy determined that if Kansas law applied, Oppenheimer would be Hable for damages.
The district court stated: “Although the Court has ruled that New York law, rather than Kansas law, is apphcable, the Court will briefly address Oppenheimer’s liability under Kansas law in the event that the appellate court finds that Kansas law should be applied.” The court ruled that, under the rationale in State ex rel. Mays v. Ridenhour, 248 Kan. 919, 811 P.2d 1220 (1991), it appeared that under Kansas law, Oppenheimer would be hable for the sale of unregistered securities to Klein and Brenner.
Klein and Brenner classify the district court’s additional analysis of Kansas law as a ruling in the alternative. Oppenheimer, however, characterizes this portion of the district court’s opinion as dicta. Klein and Brenner assert that since Oppenheimer failed to file a cross-appeal of this ruling as required under K.S.A. 2001 Supp. 60-2103(h), Oppenheimer cannot challenge the district court’s ruling on the effect of Kansas law.
We agree with the characterization of this part of the opinion as obiter dictum. The district court employed language indicating its opinion was conditioned on “the appellate court [finding] that Kansas law should be applied” and stated “it does appear that Oppenheimer would be hable.” (Emphasis added.) The court additionally noted that because a factual dispute as to the amount of damages remained, even if Kansas law applied, it would be inappropriate to grant summary judgment to Klein and Brenner. For all these reasons, we decline to comment further on the extent of Oppenheimer’s liability under Kansas law and remand the matter to the district court for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Allegrucci, J.:
The Kansas Real Estate Commission (Commission) denied the application of Timothy S. Gates for issuance of a real estate license as a salesperson. Gates appealed the Commission’s denial to the district court, which affirmed. Gates appealed to the Court of Appeals. The court transferred the case. K.S.A. 20-3018(c).
Gates argues on appeal that the Commission’s decision is not supported by substantial evidence; is contrary to undisputed evidence; and is unreasonable, arbitrary, or capricious.
The Commission’s final order denying Gates’ application for licensure is dated January 10, 2001. The final order states:
“1. Applicant was first licensed as a salesperson by the Commission in July 1994. This license was placed in the inactive status in March 1996, and .expired on June 30,1997.
“2. On March 28, 1996, Applicant pleaded guilty to a felony in the United States District Court for the Southern District of Texas. The crime for which Applicant was convicted was possession, with intent to distribute, approximately 560 pounds of marihuana, a violation of 21 U.S.C. § 841(b)(1)(B). As a result of the plea of guilty, six other counts were dismissed on the motion of the government.
“3. Applicant was fined $10,000 and sentenced to imprisonment for a period of 37 months. He was incarcerated for 20 months, and is now on supervised release for a period of five years beginning October 9, 1998.
“4. Applicant has previously sought reinstatement of his license. By Final Orders of the Commission dated August 18,1998 and April 12,1999, reinstatement has been denied.
“5. The Commission concludes that the privilege of a real estate license, either as a broker or as a salesperson, requires the public trust. Applicant has lost that public trust through his conduct that resulted in the felony conviction. The Commission must consider this conviction in determining whether to grant Applicant’s license. See K.S.A. 58-3043. The burden is upon Applicant to show that he is sufficiently rehabilitated to warrant the public trust.
“6. In Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589 (1991), the Court approved several factors to consider in determining whether a person convicted of a felony is rehabilitated. Those factors should apply equally well to reinstate■ment of a real estate license, and in that regard include (1) the present moral fitness of the applicant; (2) the demonstrated consciousness of the wrongfulness of the conduct; (3) the extent of rehabilitation; (4) the nature and seriousness of the misconduct; (5) conduct subsequent to the misconduct; (6) the amount of time that has elapsed since the misconduct; (7) the applicant’s character and maturity at the time of the misconduct; and (8) the applicant’s current professional competence. In Vakas, the Court acknowledged that some conduct might be so serious in and of itself that reinstatement is precluded.
“7. In the present case, the Commission is mindful that Applicant’s misconduct was extremely serious. The misconduct was not the result of sudden passion, nor was it simply a youthful prank gone awry. Applicant was part of a deliberate plan spanning several months to distribute illegal drugs. This plan was carried out without regard to the damage inflicted upon the public. Applicant does state that he recognizes his actions were wrong, but his subsequent conduct does not demonstrate an earnest desire to return anything to society other than his participation in the real estate business.
“8. Given the seriousness of Applicant’s misconduct and his subsequent conduct, the Commission finds that Applicant is not sufficiently rehabilitated to warrant the public trust.”
Gates filed a petition for judicial review in district court. In a memorandum decision and order, the district court upheld the decision of the Commission. The district court stated:
“Petitioner contends the Commission erroneously interpreted and applied the law in this matter. Pursuant to K.S.A. § 58-3043, when determining whether to grant a real estate salesperson’s license, the Commission is required to take into account the applicant’s felony convictions. However, the statute grants the Commission broad discretion when considering such felony convictions. See K.S.A. § 58-3043(a)(1994).
“In the instant case, the Commission, in its Final Order, considered several factors, which are outlined in Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589 (1991), in determining whether Petitioner is sufficiently rehabilitated from his felony drug conviction to warrant the issuance of a real estate salesperson’s license. Applying these factors, the Commission ultimately found Petitioner is not sufficiently rehabilitated to be issued a license. The Commission correctly interpreted the law and applied it within the bounds of its discretion. The Final Order is supported by substantial competent evidence, although contrary evidence is likewise contained in the record.”
The scope of appellate review of the Kansas Real Estate Commission’s action is governed by the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq. Under the Kansas act, the court may grant relief if it determines, among other things, that the agency “has erroneously interpreted or applied the law”; or 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”; or the agency action is “otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c). The arbitrary and capricious test may relate to the question whether the Commission’s decision was without foundation in fact, as well as the reasonableness of its exercise of discretion. See Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989). In Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, 808 P.2d 1355 (1991), we noted that although Vakas challenged the Board’s ruling as arbitrary and capricious, “this court has stated that arbitrary, oppressive, or capricious conduct is shown ‘ “where an order of an administrative tribunal is based upon findings which are not substantially supported by evidence in the record.” ’ [Citations omitted]” 248 Kan. at 603.
Gates contends that the Commission’s decision is not supported by the evidence and is contrary to uncontroverted evidence. The Commission denied his application based on “the seriousness of Applicant’s misconduct and his subsequent conduct.” With regard to his subsequent conduct, the Commission stated that it “does not demonstrate an earnest desire to return anything to society other than his participation in the real estate business.” Gates concedes the seriousness of his misconduct. On the subject of “his subsequent conduct,” however, Gates contends that the record does not contain substantial evidence that would support the Commission’s conclusion, assertedly based on his subsequent conduct, that he “is not sufficiently rehabilitated to warrant the public trust.”
The record shows that Gates was bom in May 1970. He got a real estate license in July 1994.
Two years earlier, in June 1992, he committed the federal offense of possession of approximately 560 pounds of marijuana. He pled guilty in March 1996 to the charge of possession of marijuana with intent to distribute. The judgment in Gates’ criminal case shows that he pled guilty to Count 4 and that Counts 2, 3, 6, 10, 11, and 14 were dismissed on the government’s motion. In June 1996, he was sentenced to 37 months’ imprisonment, a $10,000 fíne, and supervision upon release for 5 years.
In March 1996, at the time he pled guilty, Gates requested that his real estate license status be changed to inactive. His fícense expired June 30, 1997.
Gates was incarcerated from August 12,1996, to April 16,1998. He completed a residential drag abuse program while he was imprisoned. Then he was a resident in the Dismas House of Kansas City, Inc., a hallway house, from April 16, 1998 through October 9, 1998. Gates’ individual case manager at Dismas House wrote to the Commission that, while he was a resident, Gates
“advanced to the highest level of achievement in our program. . . . He went directly to work in a family business and showed a strong desire to continue in that business. Mr. Gates attended all meetings as scheduled. He appears to be an honest and goal orientated [sic] person and we feel that he deserves an opportunity to pursue his goals . . . .”
In another letter to the Commission, Gates’ case manager stated that Gates “has followed all rules, and has been respectful to all staff and residents.”
On October 9, 1998, Gates began a 5-year supervised release, which will terminate on October 8, 2003. Gates is supervised by United States Probation Officer Michael Smith. There is an unsigned document dating from August 2000 in the record that states: “Mr. Smith informed me that he had no objection to an early release; he believes Mr. Gates has been successfully rehabilitated; and is not a threat to society. Additionally, he stated that Mr. Gates did not fit the classic profile for this crime.”
Since being released from Dismas House in October 1998, Gates has applied to the Commission three times to become relicensed as a real estate salesperson. Each time, his application has been denied. The most recent denial is the one before the court. On August 11, 2000, the Commission issued an initial written order denying Gates’ application on the single ground that he was convicted of a felony. Gates appealed the initial order of the Commission, and the Commission conducted a conference hearing. A transcript of the conference hearing is included in the record on appeal.
Gates testified that his conviction arose from an incident in which he helped wrap and load marijuana onto a truck. Later the truck was stopped and the marijuana was discovered. The offense occurred in June 1992, when Gates was 22 years of age. He was not indicted until February 1996.
By the beginning of 1994, according to Gates, he had decided to get out of the drug trade. He did not know how he was going to make the change until his grandmother, Agnes Gates, asked him to start working with her. Agnes Gates has been a real estate broker in Johnson County for many years. She believed in her grandson’s ability, and he viewed her offer as a “great opportunity to move on.” He went to school and got his real estate salesperson’s license and started working with his grandmother in 1994, sold off tools and equipment from his construction business, and moved his household to the Kansas City area in 1995. When he was indicted, Gates was no longer involved in the drug trade.
Since being released from prison, Gates again has been employed by his grandmother. He now performs secretarial duties and office management tasks and does some research with title companies and utilities.
Gates testified that after his second license application had been denied, he was advised to explore the possibility of getting his supervised release terminated early to improve his chances of getting a real estate license. His probation officer had no objection to early discharge from supervision. On September 28, 2000, the federal judge who sentenced Gates wrote to him:
“I continue to receive inquiries regarding your application for a real estate license. It is my understanding that you ask that I relieve you from the supervised release term and that 'thereupon you will qualify to be licensed.
“Upon receipt from a proper authority of a commitment that the above contingency will result in the issuance of the license I will consider the same as I deem it appropriate.”
It is obvious from the Commission’s initial order of August 11, 2000, that Gates was unable to supply the sentencing judge with the requested “commitment.” The Commission’s initial order on his third application denied his license application solely due to his conviction, with no mention of his supervised release period. Gates then requested a hearing pursuant to K.S.A. 58-3044.
Following that hearing and in keeping with its initial order, the Commission stated in the January 2001 final order on his third application: “In Vakas, the Court acknowledged that some conduct might be so serious in and of itself that reinstatement is precluded” The Commission expressed its view that Gates’ misconduct was very serious in that it was a highly developed scheme to deliver illegal drugs, to the public detriment.
In addition to the seriousness of the misconduct, which was the only factor mentioned in the initial order, the Commission’s final order includes a statement of the Commission’s view that Gates’ subsequent conduct did not demonstrate that he was sufficiently rehabilitated to warrant the public trust. The Commission reportedly applied the Vakas factors in considering whether Gates’ application should be granted. Of the eight Vakas factors, only three actually were mentioned by the Commission — seriousness of the misconduct, consciousness of the wrongfulness of the conduct, and subsequent conduct.
Seriousness of the misconduct is discussed by the Commission to the extent that we know what the misconduct consisted of and what it was about the misconduct that the Commission believed to be extremely serious. With regard to consciousness of the wrongfulness, the Commission wrote simply that “Applicant does state that he recognizes his actions were wrong.” Actual subsequent conduct is not discussed by the Commission. We do not know even what subsequent conduct the Commission considered. We learn from the final order only that the Commission concluded that Gates’ subsequent conduct did not demonstrate a desire to repay society for his misconduct.
What we know from the record of Gates’ subsequent conduct is that he paid a $10,000 fine, that he served his prison time without incident, that he completed a drug abuse program, that he was viewed by his hallway house case manager as an exemplary resident who was honest and goal oriented, and that he is viewed by his probation officer as successfully rehabilitated. Based on these facts, the sentencing judge indicated he would “consider the same as I deem it appropriate” to shorten the term of Gates’ supervised release if he were issued a real estate salesperson’s license. The record of Gates’ subsequent conduct is altogether positive.
The Commission, in its final order, stated that it used factors identified in Vakas. The Commission’s reliance on Vakas is misplaced. In Vakas, the factors were “considered in determining whether a license to practice medicine should be reinstated.” 248 Kan. 589, Syl. ¶ 2. Vakas’ license had been revoked for his seriously substandard conduct in the practice of medicine. Vakas argued that because the Healing Arts Act lacked guidelines for reinstating a license to practice medicine, it was an unconstitutional delegation of legislative authority to the Board. The court agreed with the Kansas Board of Healing Arts that factors identified in State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), which involved a disbarred attorney s application for reinstatement, were “just as relevant in determining if a license to practice medicine and surgeiy should be reinstated.” 248 Kan. at 600. Russo surrendered his license for grave and unlawful conduct in his law practice. We said that conduct “is totally repugnant to the administration of justice and the duties of an attorney,” and “strikes at the very heart of the criminal justice system and, if tolerated, could completely destroy our system of justice.” Vakas, 248 Kan. 605. We further stated that “appellant, upon seeking reinstatement, has an even greater burden than when he was initially granted a license because he must overcome the prior finding by the Board as to his fitness to practice medicine. The conduct which results in the revocation of a license to practice medicine may be so serious in and of itself as to preclude reinstatement.” 248 Kan. at 608. In this case, there is no allegation that Gates’ criminal conduct was in any way related to his real estate practice. In fact, the conduct for which he was indicted occurred years before he obtained his real estate license.
Nor is Gates applying for reinstatement. His license was not revoked due to the felonious conduct. He allowed his real estate license to expire, he has taken and passed the examination, and he is applying for a license to engage in business as a real estate salesperson. Thus, the rules adopted by the Supreme Court for the admission of attorneys are more akin to Gates’ circumstances than the factors identified in Russo as relevant considerations in determining whether a disbarred attorney should be reinstated to the practice of law. See Rule 702, Educational and Moral Qualifications for Admission to the Bar (2001 Kan. Ct. R. Annot. 539).
Neither Vakas nor Russo are applicable to the present case. In addition, there is no reason to look beyond the statutory factors to be used by the Real Estate Commission in determining whether to grant a license. K.S.A. 58-3043 provides:
“(a) In determining whether to grant a license the commission shall consider:
(1) Any revocation or suspension of a prior real estate license;
(2) whether an applicant has committed any of the practices enumerated in K.S.A. 58-3062, and amendments thereto, or has violated this act or rules and regulations adopted hereunder during the term of any prior license;
(3) any plea of guilty or nolo contendere to, or any conviction of: (A) Forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to defraud or any other similar offense; (B) a crime involving moral turpitude; or (C) any felony charge; and
(4) such other matters as the commission deems pertinent.
“In its consideration of any such prior revocation, conduct or conviction, the commission shall take into account the nature of the offense; any aggravating or extenuating circumstances; the time elapsed since such revocation, conduct or conviction; the rehabilitation or restitution performed by the applicant; and such other factors as the commission deems relevant.”
In Gates’ case, there has been no revocation or suspension of a prior real estate license, Gates did not engage in any prohibited real estate practice, and the Commission did not identify any other matters it deemed pertinent. K.S.A. 58-3043(a)(1), (2), and (4). Gates pled guilty and was convicted of a felony. K.S.A. 58-3043(a)(3). With regard to a felony conviction, the statute requires the Commission to consider more than the fact that the applicant has been convicted. Thus, under the statute, granting of a license cannot be denied based solely on the seriousness of die offense.
In this case, the Commission considered the nature of Gates’ offense to be very serious. Initially, it was the sole reason to deny him a license. As Gates points out, the final denial was not based solely on his felony conviction. Gates urged the Commission to consider several extenuating circumstances. He was young, in his early twenties, at the time he was involved in drug trade. He had gotten out of the drug business by the time he was 24. With regard to time elapsed, the offense Gates was convicted of occurred in June 1992, nearly 10 years ago. He paid a $10,000 fine in addition to serving a prison sentence. His conduct in prison and in the hallway house was commendable. He has mentors and supporters in real estate and development who express strong support for his licensure, and he has a family business in which to fully participate once he is licensed.
As we have seen, the Commission found that Gates was not rehabilitated. There are no facts in the record, however, that support the Commission’s finding. In fact, the evidence relevant to rehabilitation tends to show that he now is a useful and law-abiding member of society. At oral argument, in response to a question from the court, counsel for the Commission confirmed that the evidence the Commission relied on for concluding Gates was not rehabilitated was his continuing supervised release. Mr. Gates’ supervised release is part of his original sentence. The fact that Mr. Gates is on supervised release is not, in and of itself, subsequent conduct of Gates. What Gates does while he is on supervised release would be subsequent conduct and could support a finding that he was not rehabilitated. The fact that he is on supervised release is not evidence to support such a conclusion. Supervised release is a factor that may be considered, but without more would not support the denial of a real estate license.
K.S.A. 58-3043(a) requires the Commission to balance Gates’ conviction with other factors. It does not appear that the Commission did so. The determination regarding Gates’ subsequent conduct is not substantially supported by evidence in the record. For this reason, we conclude that the Commission’s decision was arbitrary and unreasonable.
The judgment of the district court is reversed, and this case is remanded to the Kansas Real Estate Commission with directions to make findings of fact based on substantial competent evidence consistent with this opinion. | [
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|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Stan R. Singleton, of Derby, an attorney admitted to the practice of law in Kansas.
Complaints filed against the respondent alleged that the respondent violated KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence); KRPC 1.4 (2001 Kan. Ct. R. Annot. 334) (communication); KRPC 1.5 (2001 Kan. Ct. R. Annot. 345) (fees); and KRPC 1.15 (2001 Kan. Ct. R. Annot. 376) (safekeeping property).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared in person and through counsel, G. Craig Robinson, and the Disciplinary Administrator’s office appeared by Frank D. Diehl, Deputy Disciplinary Administrator.
Based upon clear and convincing evidence, a unanimous hearing panel made the followings findings of facts and conclusions of law:
“FINDINGS OF FACT
“1. Stan R. Singleton (hereinafter ‘the Respondent’) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Derby, Kansas .... The Respondent was admitted to the practice of law in the State of Kansas on September 14, 1978.
“Wilson Case: DA76S9
“2. The Respondent prepared a will for Henry Wilson in June, 1997. Thereafter, on August 5, 1997, Henry Wilson passed away. Hemy Wilson was survived by four children: Guy Marc Wilson, Karen Beem, Debra Wilson, and Lori Hemsley. Pursuant to Henry Wilson’s will, Guy Marc Wilson was to serve as Executor of the will.
“3. After Heniy Wilson’s passing, Guy Marc Wilson contacted the Respondent and requested that the Respondent represent him in probating Henry Wilson’s will. The Respondent agreed.
“4. Although the Respondent obtained entries of appearances and waivers from Heniy Wilson’s daughters in March, 1998, the order admitting the will to probate was not filed until August, 1998. Additionally, because of the Respondent’s delay in obtaining the order admitting the will to probate, Guy Marc Wilson did not have the authority to open a checking account, cash life insurance policies, and pay Heniy Wilson’s bills. The expenses from the funeral home remained unpaid for two years, resulting in an interest penalty to the estate in the amount of $1,189.42. The Respondent failed to file the Inheritance Tax Return, IH-90, until two years after Henry Wilson’s death. As a result, interest in the amount of $56.37 accrued against the estate. Finally, Henry Wilson’s personal property remained in storage for more than two years.
“Sinn Case: DA7707
“5. In March, 1998, John L. Sinn was charged with two counts of rape. As a result of plea negotiations, Mr. Sinn entered a no contest plea to aggravated indecent liberties with a child. After being sentenced, Mr. Sinn became dissatisfied with the representation of his counsel. Through his mother, Maiy Hahner, Mr. Sinn retained the Respondent. The Respondent was retained to file and prosecute a motion to modify sentence and an appeal.
“6. The Respondent filed and prosecuted a motion to modify sentence. After due consideration, the Court denied the motion. Thereafter, the Respondent filed a notice of appeal. It took the Respondent some amount of time to obtain the transcripts of the plea and sentencing hearings and the police reports. After the Respondent reviewed the transcripts and reports, the Respondent determined that an appeal would be futile. Accordingly, the Respondent allowed the appeal to be dismissed on the state’s motion.
“7. The Respondent failed to discuss with Mr. Sinn his conclusion that an appeal would be futile. The Respondent failed to notify Mr. Sinn that the state had filed a motion to dismiss. Finally, the Respondent failed to inform Mr. Sinn that the appeal had been dismissed.
“8. The Respondent did communicate with Ms. Hahner in an office consultation. Ms. Hahner recorded this conversation and presumably relayed the recorded statement to Mr. Sinn. However, the Respondent failed to contact Mr. Sinn following the meeting with Ms. Hahner.
“Stevens Case: DA7843
“9. During the summer months of 1998, Jennifer Stevens retained the Respondent to represent her in the Municipal Court of Wichita, Kansas, on a charge of driving under the influence of alcohol. In August, 1999, the Respondent entered his appearance.
“10. The case was resolved by plea and the matter was scheduled for sentencing. Prior to the sentencing, Ms. Stevens was required to appear for an interview for the pre-sentence investigation. However, the letter the Respondent sent to Ms. Stevens was sent to an old address and she did not receive it. After Ms. Stevens learned that she had missed the appointment, the matter was rescheduled and she made herself available for the interview.
“11. Prior to sentencing, Ms. Stevens telephoned the Respondent’s office. At that time, Ms. Stevens learned that the Respondent was ill. Ms. Stevens was informed that a continuance may be sought if the Respondent remained ill. However, Ms. Stevens had already made arrangements to be away from work and did not wish to continue the sentencing hearing.
“12. At the time of the sentencing hearing, January 19, 2000, the Respondent failed to appear due to illness. In his stead, the Respondent asked Jim Wilson to appeal. Mr. Wilson did appear in behalf of the Respondent for Ms. Stevens.
“13. Throughout the representation, Ms. Stevens placed numerous telephone calls to the Respondent. The Respondent failed to return a number of her telephone calls.
“Durham Case: DA7871
“14. On August 10, 1996, Bobbie Durham was injured in an automobile accident. Ms. Durham contacted the Respondent and hired him to represent her. The Respondent and Ms. Durham entered into a contingency fee agreement.
“15. The Respondent reached a settlement agreement to the satisfaction of Ms. Durham. In January, 1998, the Respondent received the settlement proceeds. The Respondent and Ms. Durham agreed to deposit $11,510.98 into the Respondent’s trust account for payment of medical bills owed by Ms. Durham, associated with the automobile accident.
“16. Ms. Durham provided the Respondent with the medical bills that needed to be paid with the $11,510.98, that had been deposited in the Respondent’s trust account. A dispute about the actual amount owed arose and, as a result, Columbia Wesley Medical filed suit. Eventually, the Respondent settled the collections case with Columbia Wesley Medical to Ms. Durham’s satisfaction. As a result of the settlement, the Respondent forwarded $11,000, to counsel for Columbia Wesley Medical, from his trust account for the settlement on April 27, 2000.
“17. The Respondent failed to return Ms. Durham’s telephone calls and failed to adequately inform Ms. Durham regarding the Columbia Wesley Medical law suit.
“18. The Respondent failed to inform Ms. Durham that she had the right to have the Respondent’s fee reviewed.
“19. Between March 31, 1998, and March 31, 2000, the Respondent’s trust account balance fell below $11,510.98 on at least thirteen occasions.
“CONCLUSIONS OF LAW
“Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
“1. KRPC 1.3 provides: ‘[a] lawyer shall act with reasonable diligence and promptness in representing a client.’ Id. The Respondent failed to act with rea sonable diligence and promptness in representing the estate of Henry Wilson. As a result of tire Respondent’s lack of diligence, the order admitting Henry Wilson’s will to probate was delayed by five months; Guy Marc Wilson could not open a checking account, cash life insurance policies, and pay Henry Wilson’s bills; the estate incurred an interest penalty on the bill for the funeral home expenses in the amount of $1,189.42; the Inheritance Tax Return, IH-90 was not filed until two years after Henry Wilson’s death resulting in an interest penalty of $56.37; and Henry Wilson’s personal property was not distributed to his heirs for more than two years which caused the estate to incur storage fees. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“2. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’
Id. The Respondent failed to maintain adequate communication with Mr. Sinn, Ms. Stevens, and Ms. Durham. In DA7707, the Respondent failed to discuss with Mr. Sinn that an appeal would be futile. Additionally, the Respondent failed to notify Mr. Sinn that the state had filed a motion to dismiss. Finally, the-Respondent failed to inform Mr. Sinn that the appeal had been dismissed. In DA7843, the Respondent failed to return telephone calls placed by Ms. Stevens. Additionally, the Respondent failed to keep Ms. Stevens adequately informed regarding her case. In the Durham Case (DA7871), the Respondent failed to return Ms. Durham’s telephone calls and failed to adequately inform Ms. Durham regarding the Columbia Wesley Medical law suit. Because the Respondent failed to keep Mr. Sinn, Ms. Stevens, and Ms. Durham informed about the status of their cases, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“3. KRPC 1.5(d) provides:
'. . . A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, and the litigation and other expenses to be deducted from the recovery. All such expenses shall be deducted before the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing tire client’s share and the amount and method of its determination. The statement shall advise the client of the right to have the fee reviewed as provided in subsection (e).’
Id. (emphasis added). In this case, the Respondent violated this rule by failing to advise Ms. Durham of her right to have the fee reviewed. As such, the Plearing Panel concludes that the Respondent violated KRPC 1.5(d).
“4. KRPC 1.15(a) provides:
‘A lawyer shall hold properly of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete-records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of representation.’
Id. After depositing Ms. Durham’s funds into his trust account, and before the Respondent paid the settlement of the law suit brought by Columbia Wesley Medical, the balance in the Respondent’s trust account fell below $11,510.98 on at least thirteen occasions. As such, the Hearing Panel concludes that the Respondent failed to safeguard Ms. Durham’s funds, in violation of KRPC 1.15(a).
“RECOMMENDATION
“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 safeguard his client’s property. Additionally, the Respondent violated his duty to his clients to provide diligent representation and adequate communication.
“Mental State. The Respondent negligently violated his duties to his clients.
“Injury. The estate of Henry Wilson suffered actual injury as a result of the Respondent’s misconduct. Additionally, Mr. Sinn, Ms. Stevens, and Ms. Durham suffered potential injury.
“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:
“Pattern of Misconduct. The Hearing Panel concludes that the Respondent engaged in a pattern of misconduct because the Respondent failed to adequately communicate with numerous clients over a period of time.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.5, and KRPC 1.15. As such, the Respondent engaged in multiple offenses.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1978. At the time . . . the misconduct in these cases began, the Respondent had been practicing law for eighteen (18) years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time the misconduct occurred.
“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 Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of Dishonest or Selfish Motive. There was no evidence presented that the misconduct was the result of a dishonest or selfish motive.
“Personal or Emotional Problems. The Respondent testified that he has been estranged from his wife since April, 2000. Additionally, the Respondent testified that he has experienced marital discord for a number of years. The Respondent also testified that the problems that he has experienced in his marriage affected his ability to practice law. Finally, the Respondent testified that he is in the process of obtaining a divorce from his wife of twenty (20) years.
“Present and Past Attitude of Cooperation. The Respondent fully cooperated in the investigation and prosecution of the disciplinary matter.
“Previous Good Character and Reputation. The Respondent is an active and productive member of the bar in Derby, Kansas. He enjoys the respect of his clients and friends and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.
“Remorse. Clearly, at the hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following standards:
‘Reprimand is generally appropriate when a lawyer is negligent in dealing with client property and causes injury or potential injury to a client.’ Standard 4.13.
‘Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.’ Standard 4.43.
“The Hearing Panel unanimously recommends that imposition of discipline be suspended, and the Respondent be placed on probation for a period of twenty-four (24) months, commencing forthwith upon . . . terms and conditions [recommended by the panel].”
The court, having considered the record, the final hearing report, the factors in aggravation and mitigation, and the panel’s recommendation, adopts and concurs in the findings, conclusions, and recommendation of the hearing panel. Based upon the respondent’s violations of KRPC 1.3, KRPC 1.4, KRPC 1.5, and KRPC 1.15, the court finds that imposition of discipline should be suspended and respondent placed on probation with the conditions as follows.
The respondent appeared before us and requested the order not be published. After careful consideration of his argument, the court finds no justification to make an exception in this case.
It Is Therefore Ordered that imposition of sentence be suspended and that Stan R. Singleton be placed on probation for 24 months commencing effective the date of this opinion, upon the terms and conditions recommended by the hearing panel:
“1. Supervision. The Respondent shall be supervised by N. Trip Shawver, a duly licensed Kansas attorney. While serving as the Respondent’s supervising attorney, Mr. Shawver shall act as an agent of the court and, accordingly, be afforded the immunities granted by Kan. Sup. Ct. R. 223. During the first six months of probation, Mr. Shawver shall meet with the Respondent on a bi-weekly basis. Thereafter, for the remainder of the probation, Mr. Shawver shall meet with the Respondent on a monthly basis. Mr. Shawver shall have access to the Respondent’s client files, employees, and trust account. Mr. Shawver shall monitor whether the Respondent is diligently representing his clients, whether the Respondent is providing adequate communication with his clients, and whether the Respondent is advising his clients of their right to have his fee reviewed. The Respondent shall compensate Mr. Shawver for time expended in the supervision of the Respondent’s probation.
“2. Psychological Treatment. The Respondent shall follow all recommendations of Dr. Moeller. The Respondent shall execute all necessary release forms, allowing Dr. Moeller to communicate with Mr. Shawver and the Disciplinary Administrator.
“3. Professional Liability Insurance. The Respondent shall maintain professional liability insurance. Within thirty days of the date of this report, the Respondent shall provide written verification of the professional liability insurance to the Disciplinary Administrator. Thereafter, for the duration of the probation, the Respondent shall provide written verification of the professional liability insurance on or before the renewal date to the Disciplinary Administrator.
“4. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action directing the Respondent to show cause why the probation should not be revoked.
“5. Client File Audits. Within thirty (30) days of the date of this report, Mr. Shawver shall conduct an initial audit of the Respondent’s files. Thereafter, Mr. Shawver shall conduct audits of the Respondent’s files as he deems appropriate. At the conclusion of the probation, Mr. Shawver shall complete a final audit of the Respondent’s files. After each audit, Mr. Shawver shall malee a report regarding the audit. If Mr. Shawver discovers any violations of the Kansas Rules of Professional Conduct, Mr. Shawver shall include such information in his report. Mr. Shawver shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Mr. Shawver’s periodic audit reports.
“6. Quarterly Reports. Mr. Shawver shall report to the Disciplinary Administrator on a quarterly basis regarding: whether the Respondent is diligently representing his clients, whether the Respondent is providing adequate communication with his clients, whether the Respondent is advising his clients of their right to have his fee reviewed, whether the Respondent’s trust account is being utilized appropriately, whether the Respondent is following tire recommendations of Dr. Moeller, and whether the Respondent has engaged in additional violations of the Kansas Rules of Professional Conduct. Mr. Shawver shall immediately report any material deviation from proper practice to the Disciplinary Administrator.
“7. Restitution. The Respondent shall pay restitution in the amount of $1,245.79 to the estate of Henry Wilson within sixty (60) days of the date of this report.
“8. Trust Account Audits. Robert Straub, an auditor employed by the Disciplinary Administrator’s office, shall conduct quarterly audits of the Respondent’s trust account. The Respondent shall provide Mr. Straub with access to his trust account records to facilitate the quarterly audits. After each audit, Mr. Straub shall make a report of the audit, including information on whether the Respondent is properly safeguarding his client’s property and whether the Respondent is appropriately utilizing his trust account. Mr. Straub shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Mr. Straub’s quarterly audit reports.”
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of first-degree murder, aggravated kidnapping, aggravated criminal sodomy, kidnapping, attempted rape, attempted kidnapping, and two counts of aggravated robbery. Defendant entered into a sentence agreement with the State. Defendant was sentenced on the first-degree murder and aggravated kidnapping counts; however, imposition of sentence was suspended on the remaining counts for more than 3Vz years. Campbell challenges (1) the district court’s jurisdiction to later impose sentence on those counts, (2) the failure to suppress statements, and (3) the sufficiency of the evidence to support his conviction for aggravated criminal sodomy and attempted rape. The State argues that the defendant waived his right to appeal his conviction.
On the evening of March 22, 1996, just prior to 9 p.m., Allen Tanner was approached by two armed men, later identified as Kenyon Campbell and Ronald Etheridge, upon his arrival in the parking lot of “Obsessions,” a club that featured exotic dancers. The two men got into Tanner’s vehicle, forcing Tanner into the passenger seat. The men drove to a parking lot filled with semi-tractors and trailers. After parking the vehicle between two trailers, the men held Tanner at gunpoint, threatened his life, and asked for his money. The men then locked Tanner in the trunk of Tanner’s car. After approximately 10 minutes, Tanner freed himself from the trunk, located the keys to his vehicle, drove to a convenience store, and called the police. Tanner was unable to identify the perpetrators. He testified both assailants wore surgical gloves, diat one man was black, and that he believed the other man was also black.
Later that evening, Campbell and Etheridge, armed with guns, wearing ski masks and white latex gloves, burst into “Fantasy Private Dancers” (Fantasy), a private nude dancing business. Only two people, a female employee, D. C., and a male truck driver, Jonathan Broughman, were inside at the time. Initially, the first masked male, who was probably Etheridge, looked for money in the back of Fantasy, while the second masked male, Campbell, held D. C. and Broughman at gunpoint. After about 5 to 10 minutes, Etheridge returned and forced D. C. to the back of the business. Etheridge looked for money but was unable to find any. While holding a gun to D. C.s’ head and threatening to kill her, Etheridge forced her to perform fellatio on him. Etheridge then forced D. C. onto her back, tore off her clothes, and attempted to rape her. She testified she did not believe penetration had occurred. Approximately 10 minutes later, Etheridge got up and returned to the front of the business.
Campbell, who had remained in the front of Fantasy, took $80 to $85 from Broughman at gunpoint, forced Broughman onto the floor, jerked the phone cords out of the wall, kept a lookout, looked toward the back of Fantasy a couple of times, and yelled for Etheridge to hurry up. Broughman testified he heard moaning, heavy breathing, and grunting coming from the back, as well as ransacking and locker doors slamming.
Shortly after Etheridge returned to the front, Campbell stated, “Somebody’s coming,” and both men headed outside to the parking lot. Broughman went to the back of Fantasy. He found D. C. naked and attempting to put on her clothes. While still inside, Broughman and D. C. heard between three to five gunshots outside the building. As Broughman and D. C. left Fantasy, they observed a man laying face down in the parking lot beside a car with its trunk open. Neither Broughman nor D. C. checked on the injured man, or observed the man move.
When police arrived at Fantasy, they discovered a man lying face down in the parking lot beside a car with its trunk open. The man was not breathing and had no pulse. The man was later identified as John Rees II. The cause of Rees’ death was a gunshot wound to the chest. Rees had been shot three times in the back. The bullets had exited through his chest. Four spent cartridge cases fired from the same 9 millimeter handgun were found at the scene. A handgun was found in a ditch near Fantasy. It was not the gun used to fire the cartridge cases.
On April 1, 1996, Campbell’s girlfriend, Shanell Walters, was contacted by police. Walters stated that Campbell had told her that he and Etheridge had robbed a couple of people and shot someone. Walters later testified that Campbell said he and Etheridge had robbed a guy, took his wedding band, and stuck him in the trunk of his car. Campbell also told Walters that he and Etheridge had gone into a club and robbed it, tore out phone lines, and held people at gunpoint on the floor. Campbell stated that Etheridge had raped a girl in the back room. Walters testified Campbell tore a picture of Rees from the newspaper and indicated to her that he was the man who had been shot. Campbell had stated that when Rees drove up to the club, they went out and confronted him. They planned to stick him in the trunk of his vehicle as they had done previously to another man, but instead Etheridge shot Rees five times as Rees attempted to run away. Campbell told Walters he had thrown his gun away as he ran to the van driven by his brother, Rodney Campbell. They later burned their masks and gloves and disposed of Etheridge’s gun. Shortly thereafter, Campbell, Rodney, and Etheridge left for Chicago.
The police persuaded Walters to contact Campbell at his mother’s house in Chicago. Campbell had given her the number. The police dialed the number and she spoke with Campbell on a phone in the Sheriff s Department in the presence of detectives. The conversation was recorded with Walters’ permission. The detectives wrote some of the questions for Walters to ask Campbell during the conversation. Walters made subsequent calls to Campbell in Chicago, which were also recorded with her permission. The purpose of the calls was to obtain information of the crime, to corroborate Walters’ story, and to determine Campbell’s location. Campbell was later arrested.
Rodney Campbell, Campbell’s brother, testified that he drove the van for Campbell and Etheridge during that night. Rodney had borrowed the van from an acquaintance who was out of town. Rodney testified he had driven himself, Etheridge, and Campbell to “Obsessions.” After being parked for a few minutes, another vehicle pulled into the parking lot and Etheridge and Campbell, both armed with handguns, got into the vehicle with the driver. Rodney followed the vehicle to a parking lot filled with semi-tractors, parked where he was unable to see the other vehicle, and waited for Campbell and Etheridge to return. When Campbell and Etheridge returned to the van, Rodney drove them back to his house. Campbell and Etheridge told Rodney they had gotten a watch and some money off the man and that they had put him in the trunk of the vehicle. Rodney testified that, prior to this, the men had talked about finding a way to get some money and robbing someone and the fact that they knew people who worked at these types of clubs and that their customers had a lot of money.
Rodney testified that later that evening he drove Campbell and Etheridge to Fantasy, where Rodney and Etheridge knew one of the employees. When they arrived, there was a semi-tractor parked in the parking lot. Rodney dropped Etheridge and Campbell off and was told to come back and pick them up in 3 to 4 minutes. Etheridge and Campbell had indicated to Rodney that they thought the truck driver had some money. When Rodney was returning to pick up Etheridge and Campbell, he saw them running towards the van. After getting in the van, both Campbell and Etheridge indicated that Etheridge had shot a guy in the Fantasy parking lot. Etheridge indicated that while they were leaving the club he had shot a man who had attempted to run. Rodney testified that Campbell had taken the money from the truck driver and stayed in the front of the club, while Etheridge was in the back room with a female employee. Campbell told Rodney he did not know what went on between Etheridge and the girl in the back room because he stayed up front. Campbell did not have his gun with him when he got back in the van and indicated to Rodney that he had thrown it away. Rodney testified that the next day, the men burned their clothing, the gloves, and the stocking caps that had holes cut in them, and tossed Etheridge’s gun into the river. Rodney testified that Etheridge and Campbell had worn white surgical gloves they had gotten out of the van.
The police were unable to recover Etheridge’s weapon after searching the river. Both Campbell’s and Rodney’s fingerprints were found inside the van. No evidence was found at the location at which Tanner indicated he had been robbed and forced into the trunk of his vehicle.
On April 4, 1996, Campbell was charged with kidnapping, two counts of aggravated robbery, aggravated kidnapping, aggravated criminal sodomy, attempted rape, attempted kidnapping, at tempted aggravated robbery, and first degree murder. A jury convicted Campbell of all these charges, with the exception of the attempted aggravated robbery count. Campbell’s motions for a new trial and a judgment of acquittal were denied. The matter was set for sentencing.
Prior to sentencing, Campbell entered into the following agreement with the State:
“1. [Campbell] agrees to cooperate fully with law enforcement agencies in the investigation and prosecution of Ronald Etheridge for the events which gave rise to case 96 CR 619, including recounting all facts of which he is aware and providing all information of which he has any knowledge including any information as to the location of Ronald Etheridge and being interviewed by law enforcement officres [sic] concemig [sic] his knowledge;
“2. [Campbell] agrees to testify truthfully and completely in any proceeding against Ronald Etheridge arising out of this case;
“3. That such truthful testimony would be substantially the same as testimony given in case 97 MS 104.
“4. [Campbell] waives any right to appeal the verdict against him in case 96 CR 619;
“5. In return the State agrees to recommend at the sentencing . . . that [Campbell] receive a controlling sentence of 300 months and, if [Campbell] requests, that he be permitted to serve his sentence in an[d] out of state penal institution. The State agrees it may not use any information gained from [Campbell] against him in this case.”
At sentencing, both the State and Campbell’s counsel requested that the district judge follow the sentencing agreement and grant a downward durational departure to 300 months on the aggravated kidnapping count. Campbell acknowledged to the judge that he was aware that if he did not follow the terms of the sentencing agreement the State could ask for his agreed-upon sentence to be set aside and request that the maximum sentence be imposed. Campbell thanked the State for allowing him to enter into this agreement. Campbell was sentenced to life on the first-degree murder count and to 300 months on the aggravated kidnapping count, with the 300 months running concurrently. The district judge, however, to insure that Campbell kept his part of the bargain, did not impose sentence on the remaining counts, but took the matter under advisement.
Ronald Etheridge was convicted on November 13, 2000, for his participation in the crimes. On November 30, 2000, more than 3Vz years after Campbell was first sentenced and shortly after Campbell refused to testify against Etheridge as agreed, the district court imposed sentence on the remaining counts, sentencing Campbell to 77 months for the aggravated criminal sodomy count, 51 months on each of the two aggravated robbery counts, 51 months on the kidnapping count, 19 months on the attempted rape count, and 34 months on the attempted kidnapping count. Each of the counts was ordered to run consecutively and to run consecutive to his prior sentence for aggravated kidnapping. A notice of appeal was filed December 12, 2000. This court has jurisdiction over the appeal because a life sentence was imposed. See K.S.A. 22-3601(b)(l).
Jurisdiction to Impose Sentence
K.S.A. 22-3424(c) provides:
“If the verdict or finding is guilty, judgment shall be rendered and sentence pronounced without unreasonable delay, allowing adequate time for the filing and disposition of post-trial motions and for completion of such presentence investigation as the court may require.” (Emphasis added.)
In Kansas, sentencing is strictly controlled by statute. State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985). The following are the authorized dispositions in sentencing an individual:
“(1) Commit the defendant to the custody of the secretary of corrections ... or ... to jail for the term provided by law;
“(2) impose the fine applicable to the offense;
“(3) release the defendant on probation . . .;
“(4) assign the defendant to a community correctional services program . . .;
“(5) assign the defendant to a conservation camp . . .;
“(6) assign the defendant to a house arrest program . . .;
“(7) order the defendant to attend and satisfactorily complete an alcohol or drug education or training program . . .;
“(8) order the defendant to repay the amount of any reward paid . . ., repay the amount of any costs and expenses incurred by any law enforcement agency in the apprehension of the defendant. . ., or repay the amount of any public funds utilized by a law enforcement agency to purchase controlled substances from the defendant during the investigation . . .;
“(9) order the defendant to pay the administrative fee . . . ;
“(10) order the defendant to pay a domestic violence special program fee . . .;
“(11) impose any appropriate combination [of these dispositions]; or
“(12) suspend imposition of sentence in misdemeanor cases.” K.S.A. 2001 Supp. 21-4603d(a).
At the time Campbell was sentenced, none of the authorized dispositions allowed a judge to intentionally or inadvertently fail to impose one of the statutory dispositions. See Osbey, 238 Kan. at 288.
We note that when a defendant is convicted on several counts, a single judgment should be pronounced declaring the full measure of punishment to be imposed for all offenses. Osbey, 238 Kan. at 287; State v. Woodbury, 133 Kan. 1, 2, 298 Pac. 794 (1931). Campbell contends that when the district court improperly suspended imposition of a felony sentence, it later lacked jurisdiction to impose sentence on November 30, 2000, because sentence on the suspended felony counts was not imposed “without unreasonable delay.” The State asserts that this court lacks jurisdiction to entertain Campbell’s appeal, pursuant to K.S.A. 21-4721(c), because he is appealing from a presumptive sentence, and that any delay in sentencing was agreed to by Campbell when he entered into the sentencing agreement and that under these circumstances Campbell was sentenced within a reasonable time. Whether a court has jurisdiction over a matter is a question of law over which this court has unlimited review. State v. Jacques, 270 Kan. 173, 191, 14 P.3d 409 (2000).
Pursuant to K.S.A. 2001 Supp. 22-3602(f), appeals from sentences imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., for crimes committed on or after July 1, 1993, are allowed only as provided for in K.S.A. 21-4721 and amendments thereto. See State v. Flores, 268 Kan. 657, 658, 999 P.2d 919 (2000). In resolving this jurisdictional question, this court must interpret the provisions of the KSGA in effect at the time the defendant was originally sentenced. Interpretation of the KSGA is a question of law over which the Supreme Court has an unlimited scope of review. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
K.S.A. 21-4721(c) states:
“(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
(1) Any sentence that is within the presumptive sentence for the crime; or
(2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
This court, however, also has jurisdiction to correct illegal sentences at any time. K.S.A. 22-3504. An illegal sentence is “ ‘a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ ” State v. Johnson, 269 Kan. 594, 600, 7 P.3d 294 (2000) (quoting State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 [1997]).
Although Campbell does not specifically claim his sentence was illegal, because Campbell alleges the district court lacked jurisdiction to impose a portion of his sentence, this court has jurisdiction to hear Campbell’s appeal as an appeal from an illegal sentence pursuant to K.S.A. 22-3504. In addition, Campbell’s appeal may also be considered an appeal from an illegal sentence because the district judge failed to impose a specific term for confinement when the judge sentenced Campbell. See Osbey, 238 Kan. at 280 (where defendant was convicted of first-degree murder and unlawful possession of firearm and sentence on the possession charge was not imposed until a year after sentence on the murder charge, defendant’s original sentence was illegal because a specific term for confinement was not imposed at sentencing).
Campbell cites to Mintie v. Biddle, 15 F.2d 931 (8th Cir. 1926), a federal circuit court case out of Kansas, where after the defendant pled guilty the case was continued without imposition or entry of an order. Extrinsic oral evidence revealed that the sentence was withheld because the government desired to use the defendant as a witness against a codefendant. Over 2Vz years later, the defendant was subpoenaed to appear as a witness against a codefendant. After the codefendant pled, guilty, the defendant was sentenced. The defendant filed a writ of habeas corpus. The trial court denied the writ, holding that the delay between plea and sentencing occurred by the defendant’s consent. The Eighth Circuit Court of Appeals reversed, finding that the sentencing court lost jurisdiction to impose sentence because sentencing had been indefinitely postponed. 15 F.2d at 933. The Mintie court also held that consent of the defendant to the postponement of the sentence could not cure a lack of jurisdiction because jurisdiction was lost when the sentence was postponed indefinitely. 15 F.2d at 932.
The decision in Mintie, however, was not followed by the United States Supreme Court in Miller v. Aderhold, 288 U.S. 206, 77 L.Ed. 702, 53 S.Ct. 325 (1933). In that case, the Supreme Court recognized the weight of authority at the time favored the permanent suspension of a sentence as being void and resulting in a loss of jurisdiction by the court. However, the Supreme Court held that because a defendant may demand that sentence be imposed, a defendant consents to the delay in the absence of such a request. 288 U.S. at 210. See also Zerbst v. Nahas, 67 F.2d 742 (10th Cir. 1933) (where defendant was sentenced over 2 years after his release following a plea, the court did not lose jurisdiction to impose sentence because defendant never requested sentence to be imposed).
In People v. Drake, 61 N.Y.2d 359, 474 N.Y.S.2d 276, 462 N.E.2d 376 (1984) a case involving an unexplained 39-month delay in sentencing, New York’s highest court reasoned that whether dismissal for lack of jurisdiction is warranted depends upon both the length of the delay and the reasons for it.
“Generally, where the delay is long and unexplained, the courts will hold it unreasonable [citations omitted]. Conversely, where the delay is not protracted and plausible reasons are offered to explain it, the courts hold that it is not unreasonable. When there has been an extended delay and there are plausible reasons for it, the various factors involved must be balanced.” 61 N.Y.2d at 366-67.
New York law assumes the defendant has been prejudiced by unreasonable delay and does not assume consent if the defendant does not demand that sentence be imposed. 61 N.Y.2d at 367.
The State maintains this court has previously declined to find a loss of jurisdiction to sentence a defendant under facts similar to this case. In Osbey, the sentencing court failed to sentence the defendant on one of the two counts of which she was convicted. One year later, the defendant was sentenced on the remaining count, with the sentence ordered to run concurrent with her life sentence. The Osbey court determined the error was inadvertent and not prejudicial and upheld the sentence on the second count. The failure of the judge to impose a specific term when sentencing was held to be an illegal sentence. The Osbey court also held that “[wjhere a person convicted of a crime has never been legally sentenced, a proper sentence may later be imposed.” 238 Kan. at 288. See also State v. Fennell, 218 Kan. 170, 178, 542 P.2d 686 (1975) (a void sentence may be corrected by imposition of valid one), and Richardson v. Hand, 182 Kan. 326, 329, 320 P.2d 837 (1958) (a void sentence maybe changed to a valid sentence without violating the rule that when a valid judgment and sentence have been entered, the court has no jurisdiction after the sentence has been executed to set aside or impose a new sentence).
Applying the rationale of Osbey, the district court had jurisdiction to sentence Campbell on the suspended counts. Campbell’s original sentence was illegal because the court did not impose sentence for a definite term of confinement. Campbell could have demanded to be sentenced on these additional counts at the first sentencing, and his failure to do so constituted consent to the delay. Thus, the district court had jurisdiction to impose sentence on the remaining counts. In addition, Campbell agreed to the delay in imposing his sentence, and he received nothing more than what he had bargained for in entering into the sentencing agreement.
Waiver of Right of Appeal
As to Campbell’s additional claims on appeal, the State contends Campbell waived the right to appeal his conviction when he entered into the sentencing agreement with the State. We agree.
“The right of appeal is entirely a statutoiy right; no appellate review is required by the United States Constitution, [citation omitted], or the Kansas Constitution, [citation omitted].” State v. Ji, 255 Kan. 101, 102, 872 P.2d 748 (1994). A defendant’s right to appeal from a judgment is set forth in K.S.A. 2001 Supp. 22-3602(a). “Where it can be shown that the defendant was fully aware of his or her right to appeal, or was fully advised of his or her right to appeal by counsel at the time of sentencing, a waiver of that right may be established.” State v. Willingham, 266 Kan. 98, Syl. ¶ 2, 967 P.2d 1079 (1998). A knowing and voluntary waiver by the defendant of his statutory right to appeal is generally enforceable. United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998).
In this case, the written sentencing agreement signed by Campbell specifically stated that Campbell “waives any right to appeal the verdict against him.” At sentencing, Campbell affirmed that the written agreement constituted the sentencing agreement as he understood it. Although the district judge did not specifically inform Campbell of his right to appeal at the sentencing hearing and ask Campbell whether such waiver was done freely and knowingly, Campbell’s counsel acknowledged that the sentencing agreement was contingent upon Campbell not pursuing his right to appeal his conviction. The State also stated to the district court that Campbell had agreed to waive his appeal rights.
A sentencing court is required by statute to advise a defendant of the defendant’s right to appeal after imposing sentence. K.S.A. 22-3424(f). However, failure to fully advise a defendant of this right does not necessarily preclude a defendant’s specific waiver of the right to appeal. See Willingham, 266 Kan. 98, Syl. ¶ 2.
Campbell does not allege the waiver of the right to appeal his convictions was not done freely and knowingly. In fact, Campbell does not even address the issue of waiver. Campbell bargained with the State for a reduction in sentence in exchange for his cooperation, testimony against Etheridge, and waiver of his appeal rights. The State abided by the terms of the agreement. Thus, Campbell knowingly and voluntarily waived the right to appeal his conviction when he entered into the sentencing agreement with the State. Therefore, we need not address Campbell’s additional claims on appeal.
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The opinion of the court was delivered by
Six, J.-.
This case is before us on a petition for review from the Court of Appeals’ finding that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), does not apply where the sentence imposed was based in part upon a defendant’s criminal history score under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. See K.S.A. 2001 Supp. 21-4704. State v. Ivory (Case No. 85,645), unpublished decision filed July 20, 2001.
The Court of Appeals reasoned that David L. Ivory received a sentence within the presumptive range, the sentence was not subject to challenge on appeal, and Apprendi did not apply. See K.S.A. 21-4721(c)(1). We agree.
We granted review to resolve this first impression issue. K.S.A. 20-3018(b).
FACTS
Ivory was charged with the theft of several items. He pled guilty to one count of theft. K.S.A. 21-3701(a)(l). At sentencing, the district court looked to Ivory’s prior convictions and established a criminal history score of “C” (a letter designation along the horizontal axis of the KSGA grid; the vertical axis indicates the severity level of the crime). The sentencing judge then imposed an aggravated sentence of 13 months’ incarceration and ordered the sentence to be served consecutive to a case for which Ivory was on parole at the time of the theft.
The district court conducted an evidentiary hearing to determine the value of the stolen items for purposes of restitution. The Court of Appeals found there was no evidence in the record to support the finding as to the value of an item, set aside the restitution order and remanded for further consideration. Ivory does not seek review of the restitution issue.
DISCUSSION
Ivory argues that under Apprendi, his constitutional rights were violated when the district court increased his sentence based on his prior criminal history. See K.S.A. 2001 Supp. 21-4704; K.S.A. 2001 Supp. 21-4720(b)(3). As the Court of Appeals said: “Simply put, Ivory argues application of the horizontal axis of the sentencing grid is unconstitutional under Apprendi.”
Ivory reasons that Apprendi prevents the use of prior convictions to increase a sentence beyond the statutory maximum unless proven to a jury beyond a reasonable doubt. Ivory’s conception of a statutory maximum sentence is an interesting feature of his argument. According to Ivory, the statutory maximum sentence is derived from consideration of the severity level of the crime and a horizontal axis criminal history score of “I" (no prior record). He contends that: (1) the sentencing court increased his sentence by using prior convictions, (2) the convictions were neither included in his complaint nor presented to a jury and proven beyond a reasonable doubt, and (3) prior criminal history should not be included in calculating his sentence.
Ivory’s attack on the constitutionality of the KSGA sentencing grid involves a question of law, over which we have unlimited review. See State v. Crow, 266 Kan. 690, Syl. ¶ 2, 974 P.2d 100 (1999).
The KSGA builds criminal histoiy 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 histoiy category is the presumed sentence. K.S.A. 2001 Supp. 21-4704. See State v. Gould, 271 Kan. 394, 409, 23 P.3d 801 (2001).
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.” (Emphasis added.) 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 juiy in order to be used by the court to increase the sentence imposed. 523 U.S. at 226-27.
Ivory recognizes that Apprendi did not overrule Almendarez-Torres. However, he reasons that the Apprendi majority raised serious doubts about the constitutionality of Almendarez-Torres. Ivory’s argument is not a novel one.
The interplay between Almendarez-Torres and Apprendi was considered in U.S. v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2001). The Ninth Circuit Court of Appeals rejected Pacheco-Zepeda’s argument that Apprendi overruled Almendarez-Torres:
“It is true that in Apprendi, the Court expressed reservations about Almendarez-Torres. [Citation omitted.] However, the Court reasoned that any due process or Sixth Amendment concerns — arising out of the judicial determination of a ‘fact’ that increased punishment beyond the statutory maximum— were miti gated in Almendarez-Torres by ‘[b]oth the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that [the defendant] did not challenge the accuracy of that “fact” in his case.’ [Citation omitted.] Thus, the Court in Apprendi chose not to overrule Almendarez-Torres, and unmistakably carved out an exception for prior convictions’ that specifically preserved the holding oí Almendarez-Torres. [Citation omitted.]” 234 F.3d at 414.
In addition, the Ninth Circuit rejected Pacheco-Zepeda’s argument that Almendarez-Torres was limited to its facts:
“Although Apprendi does refer to the fact that the defendant in AlmendarezTorres 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 the record— were exempt from Apprendi’s general rule and, under Almendarez-Torres, may continue to be treated as sentencing factors.” 234 F.3d at 414-15.
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. See State v. Wheeler, 145 Wash. 2d 116, 123, 34 P.3d 799 (2001).
The Tenth Circuit Court of Appeals has also rejected the notion that prior convictions should be treated as essential elements to be presented in an indictment and decided by a jury. U.S. v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001).
A similar analysis is found in People v. Thomas, 91 Cal. App. 4th 212, 217-21, 110 Cal. Rptr. 2d 571 (2001), rev. denied Oct. 31, 2001, which includes an extensive catalog of related case citations. See also, e.g., U.S. v. Gomez-Estrada, 273 F.3d 400, 401 (1st Cir. 2001) (Apprendi did not overrule Almendarez-Torres); U.S. v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir. 2001) (Apprendi carved out an exception); People v. Landrum, 323 Ill. App. 3d 664, 667, 755 N.E.2d 18 (2001) (United States Supreme Court has not overruled or abandoned Almendarez-Torres); State v. Cullen, 39 S.W.3d 899, 905 (Mo. App. 2001) (United State Supreme Court explicitly declined to overrule Almendarez-Torres and specifically exempted recidivism from the Apprendi holding); State v. Gore, 143 Wash. 2d 288, 315, 21 P.3d 262 (2001) (Almendarez-Torres has not been overruled).
Ivory’s sentence should stand. We affirm the Court of Appeals. The case is remanded with directions under the Court of Appeals’ ruling on the restitution issue.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Six, J.:
This case focuses on issues of timeliness and res judicata. The timely filing issue concerns K.S.A. 60-2103(a) (notice of appeal) and K.S.A. 60-260(b) (motions for relief from final judgment). Our resolution of the current contentions of David M. Duree, a nonparty appellant, adds a postscript to Subway Restaurants, Inc. v. Kessler, 266 Kan. 433, 970 P.2d 526 (1998), cert. denied 526 U.S. 1112 (1999) (Subway I).
In the course of previous civil litigation in which Duree, a Missouri attorney, acted as counsel in Kansas pro hac vice, a sanction for misconduct in the amount of $5,250 was entered against Duree and cocounsel by District Judge Janice Russell. Judge Russell found that Duree and cocounsel had asserted a fifth amended counterclaim against Doctor’s Associates, Inc., (DAI) without any good faith basis in fact or law. Duree, his clients, and cocounsel previously had been sanctioned $1,000 for discovery abuse. Subway I, 266 Kan. at 435. Judge Russell imposed $408,445.25 as a third sanction against Duree only. Duree’s pro hac vice admission was revoked.. At the center of the controversy resulting in the third sanction was a manufactured 1989 tax return used by Duree in the case. Duree appealed the $408,445.25 sanction in Subway I. We affirmed.
In November 2000, Duree filed two K.S.A. 60-260(b) motions to vacate the second and third sanction judgments. District Judge Lawrence E. Sheppard denied the motions. Duree now appeals.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
The controlling issue is whether the district court erred by refusing to vacate the sanctions. Finding no error, we affirm.
With reference to the third sanction of $408,445.25, Duree contends that the Kansas courts lacked subject matter jurisdiction. His contention is not persuasive and fails for two reasons: the doctrine of res judicata and the district court’s correct ruling on Duree’s K.S.A. 60-260(b) motion.
DAI, contending that Duree’s appeal is frivolous, filed a Rule 7.07(c) (2001 Kan. Ct. R. Annot. 52) motion for attorney fees and costs on appeal. Although the motion presents us with a close question, the motion is denied.
FACTS
The underlying facts are found in Subway I, 266 Kan. at 434-437. A brief background review is included here to assist in attempting to explain this appeal. DAI, a national franchiser of Subway sandwich shops, began litigation in 1990 against two of its franchise owners, Nancy Kessler and Dane Banks, for eviction, replevin, and to recover unpaid franchise royalties and arrearages on real estate and equipment leases. (Two cases were filed and later consolidated.) Duree was admitted pro hac vice by District Judge Janice Russell as counsel for Kessler and Banks. Duree assumed the role of lead counsel. He filed a series of counterclaims against DAI for its alleged fraudulent inducement of Kessler and Banks to purchase their Subway franchise. Judge Russell sustained DATs motion for summary judgment on Kessler and Bank’s fifth amended counterclaim. She found the counterclaim totally without merit. The Court of Appeals affirmed her decision in an unpublished opinion, No. 75,053, filed February 21,1997, citing her “thorough and careful examination” of a voluminous record and characterizing her analysis of the uncontroverted facts as “disciplined.” Subway I, 266 Kan. at 437.
Duree retained the services of Robert Seiffert, a CPA, to prepare an amended 1989 tax return for the Kessler-Banks Subway shop. Judge Russell found that Duree deliberately caused the preparation of a false 1989 partnership tax return to support his clients’ fraud counterclaims. In May 1996, Duree’s admission to practice in Kansas was revoked, and he was ordered to pay additional sanctions of $408,445.25. District Judge Lawrence E. Sheppard, after Judge Russell recused herself, later denied Duree’s K.S.A. 60-259(f) motion to alter or amend and refused to set aside Judge Russell’s May 1996 order. We affirmed in Subway I.
Duree has unsuccessfully attempted collateral attacks on the Subway I judgment in Connecticut, Illinois, and Missouri. See, e.g., Doctor’s Associates, Inc. v. Duree, 2000 WL 872469 (Conn. Super. 2000); Doctor’s Associates, Inc. v. Duree, 319 Ill. App. 3d 1032, 745 N.E. 2d 1270, appeal denied 195 Ill. 2d 577, 755 N.E. 2d 476 (2001); Doctor’s Associates, Inc. v. Duree, 30 S.W.3d 884 (Mo. App. 2000) (application for transfer denied December 5, 2000).
On January 28, 1999, the Missouri Board of Accountancy (Board) filed a complaint against Robert Seiffert, Mahlon Rubin, and the accounting firm of Rubin, Brown & Gomstein. The complaint charged that they subordinated their professional judgment to Duree and prepared false income tax returns. Duree was not a parly to the Missouri administrative proceeding. The Board later dismissed the complaint without prejudice. An investigation was conducted under the terms of a letter agreement that permitted the Board to reopen the case if the investigation supported the charges.
The Board found no violations of the applicable statutes or its rules and regulations in the preparation of the amended tax return. On September 7, 1999, the executive director of the Board issued a letter in which he said the Board was closing its file on the matter.
The next year, Duree returned to Kansas to litigate again. On November 20, 2000, he filed the two K.S.A. 60-260(b) motions at issue here. With respect to the 1995 sanction, Duree argued below that the $5,250 was included in the 1996 sanction of $408,455.25. He also asserted that he had not signed or prepared the summary judgment opposition papers upon which the 1995 sanction was based. With respect to the 1996 sanction, Duree raised the same arguments that had failed in Missouri, Illinois, and Connecticut courts: i.e., (1) Kansas did not have subject matter jurisdiction to sanction him, (2) the $408,445.25 sanction was invalid because it was allegedly awarded after costs were taxed, and (3) DAI released him from the sanction judgments as part of a “global settlement” with his Illinois clients in 1997.
Duree specifically argues on appeal that (1) the 1996 sanction of $408,445.25 was void due to a lack of subject matter jurisdiction, and (2) the 1995 sanction of $5,250 was void because he did not sign the pleadings. Duree also contends that his K.S.A. 60-260(b) motions were filed in a timely manner.
DISCUSSION
According to the district court, Duree did not timely file his K.S.A. 60-260(b) motions. On appeal, Duree focuses on K.S.A. 60-260(b)(4) (void judgment). Subsections (1), (2), and (3) of K.S.A. 60-260(b) require that such motions be made no more than 1 year after the judgment was entered. Duree filed his motions under subsections (4), (5), and (6). Proceeding under subsections (4), (5), and (6) of K.S.A. 60-260(b), the motion must be filed within a “reasonable time.” K.S.A. 60-260(b) says, in pertinent part:
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”
Duree told us at oral argument, “I’m not arguing to this court that the decision of the Missouri Board of Accountancy is binding on this court, but that it has some persuasive value and is what prompted the current motions before this court.” (Emphasis added.)
The 1996 Sanction of $408,445.25
Here, Duree asserts that the 1996 sanction should be vacated because Kansas courts “lacked subject matter jurisdiction to determine that the amended 1989 tax return was a ‘false tax return.’ ” He reasons that the 1996 judgment was void because the district court erroneously determined a question of federal tax law. According to Duree, Judge Russell lacked jurisdiction to determine that the amended 1989 federal tax return was a false return. As a preliminary matter, Duree asserts that the evidence did not support the district court’s original finding that he presented a “false tax return.” This issue was previously decided in Subway I. See 266 Kan. 433. Duree was represented by counsel in Subway I. He failed to file a motion for rehearing or modification of Subway I under Rule 7.06 (2001 Kan. Ct. R. Annot. 51). Here, 2 years after the mandate in Subway I has issued, he attempted under K.S.A. 60-260(b) to question die conclusions of DATs tax expert Ned Allen Ford, Distinguished Professor of Accountancy at Kansas University. DAI had submitted Professor Ford’s affidavit. Ford supported DAI’s claim that Duree had asserted the Kessler-Banks fraud claims in bad faith. (DAI also submitted the affidavit of Geoffrey C. Hazard, Jr., Professor of Law, University of Pennsylvania). See Subway I, 266 Kan. at 438.
DAI argues that if Duree believed that Professor Ford’s conclusions concerning the accuracy of the amended tax return were flawed, he was required to counter that opinion by introducing expert testimony during the 1996 sanction hearing. We agree. The district judge reasoned:
“The complaint is, as best I understand your argument, Mr. Duree, that the Kansas court was not competent to make judgment with respect to whether or not the tax return that Judge Russell found to have been fraudulently prepared, was in fact a fraudulent document. And that particular argument was made and presented both to Judge Russell, I assume, and certainly the opportunity was there to present it to the Kansas Supreme court. If that was not done, certainly the opportunity was available.”
Duree also argues that the district court lacked subject matter jurisdiction to decide whether the 1989 amended tax return was a “false tax return.”
Judge Sheppard disposed of this assertion by ruling:
“The court does not find the underlying sanction that was entered and affirmed by the Kansas Supreme Court to be in any way tainted by the argument that the court did not have jurisdiction to determine an issue involving the United States Internal Revenue Code. It [the sanction] was a matter of discipline. And subsequently, the judgment is not void as a matter of law, that is, the sanctions that were imposed.”
Duree’s attempt to revisit the $408,445.25 sanction is barred by the doctrine of res judicata. The doctrine prevents litigation where there is (1) identity in the things sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity in the quality of the persons for or against whom the cl'aim is made. Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, 610, 24 P.3d 113 (2001); see also In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985) (res judicata applies to “every question which might have been presented and decided”). We have said the doctrine as applied “is inexorable in making a judgment binding so as to shut off further inquiry no matter how clear the mistake of fact or how obvious the misunderstanding of law.” Goetz v. Board of Trustees, 203 Kan. 340, 349, 454 P.2d 481 (1969).
Judge Sheppard commented:
“You [Duree] are rearguing the same matters that have previously been presented ....
“[Y]ou have had every opportunity to have presented these arguments, and did in fact present them and they were ruled upon as part of the earlier proceedings in this case that have been finalized by way of the Kansas Supreme Court’s affirming the sanctions imposed by Judge Russell and which were reviewed in an evidentiary hearing that I conducted in December of ‘99 . . . .”
We agree with Judge Sheppard. Duree is barred from making claims here that the evidence did not support the findings supporting Judge Russell’s sanction and that the district court lacked subject matter jurisdiction.
As the Illinois appellate court observed in Doctor’s Associates, Inc. v. Duree, refusing to vacate our Subway I judgment domesticated in Illinois:
“Judge Russell did not proceed under any federal tax law, or regulation nor professional rule in making her decision but, rather, acted under K.S.A. 60-2007 and 60-211, the statutes upon which DAI’s motion was predicated. The findings of the Kansas court cited by Duree represent simply factual determinations made by the judge in considering whether the Kessler/Banks counterclaim lacked a good-faith filing, and, thus, was sanctionable. The record fails to show, as advocated by Duree, that the Kansas court was without the proper jurisdiction to render its decision.” 319 Ill. App. 3d at 1042.
The 1995 Sanction of $5,250
As an initial counter point, DAI argues that Duree’s motion to vacate the 1995 sanction was untimely. DAI asserts that Duree gave no reason for waiting 5 years after the 1995 sanction was awarded to move to vacate the judgment. There is no dispute that Duree did not challenge his $5,250 sanction in Subway 1,266 Kan. 433. Duree argues that the $5,250 sanction award did not become final until all other claims in the consolidated cases were resolved on June 12, 2001, before the district court.
A clarification of the time fine of events is helpful here. The district court consolidated Subway’s initial case, an eviction action also claiming unpaid rent (Case No. 91-C-2679, filed February 1990), with DAI’s separately filed breach of contract, tortious interference of contract, and replevin action (Case No. 90-C-12370, also filed in 1990). In September 1995, the district court awarded a sanction of $5,250 against Duree and his cocounsel. (In the case caption the journal entry included No. 91-C-2679, Court No. 7: Chapter 60; Formerly No. 90-C2344, Court No. 1, Chapter 61; Cause No. 90-C-12370, Court No. 7, Chapter 60.) Duree filed a notice of appeal. However, DAI moved for additional sanctions. DAI requested that the Court of Appeals decline to review the 1995 sanction judgment until after the district court decided DAI’s other sanctions motion. Duree’s appeal was dismissed. On November 27,2000, the district court entered a journal entry of judgment saying, “All other matters in this case are hereby dismissed without prejudice.” The caption on the order only listed Case No. 91-C-2679, DATs eviction case.
On December 29, 2000, Duree moved for clarification and, in the alternative, additional time to appeal the September 1995 sanction award. Duree argued that it was not clear whether the district court’s November 27,2000, order applied to the consolidated cases or just the replevin case. He also argued that the 1995 journal entry designating a sanction of $5,250 was not appealable until all consolidated cases were determined. Duree contended that it was unclear whether the district court intended to dismiss the 1995 judgment.
On June 12, 2001, the district court denied Duree’s motion for clarification and additional time to appeal the 1995 judgment. Regarding the November 27, 2000, journal entry, Judge Sheppard said the objective was to close all remaining files, which included Case Nos. 90-C-12370 and 91-C-2679. The district court noted that the dismissal of those claims did not affect the 1995 and 1996 sanctions against Duree.
Duree contends that “[o]n its face,” the November 27, 2000, judgment did not dismiss the consolidated cases. Thus, he concludes that it was not a final judgment for purposes of appealing the 1995 sanction award. Duree filed his notice of appeal here June 22,2001. Duree obviously failed to appeal the 1995 sanction within 30 days of the November 27, 2000, judgment. See K.S.A. 60-2103(a).
The record shows that on some documents file stamped before November 27, 2000, the case caption was as follows:
“No. 91-C-2679
Court No. 7: Chapter 60
Formerly
No. 90-C-2344
Court No.l;
Chapter 61
(Consolidates with
Cause No. 90-C-12370
Court No. 7;
Chapter 60).”
This notation shows that the parties had notice that documents referencing Case No. 91-C-2679 included the consolidated Case No. 90-C-12370. Other documents only listed Case No. 90-C-12370 in the case caption. At the January 26, 2001, hearing on the motion for clarification of the order dismissing all matters, the district court noted that counsel for both DAI and Duree participated in telephone conferences regarding “finalizing the form of the journal entry to be filed.” Thus, the parties understood that the matters continued to be consolidated.
Duree’s appeal of the 1995 sanction was not timely; thus, we need not reach his contention that the 1995 sanction judgment was void under K.S.A. 60-211 because he did not sign the pleadings upon which the sanction was based.
The K.S.A. 60-260(b) Motions
Finally, Duree argues that the district court erred in finding that his K.S.A. 60-260(b) motions challenging the 1995 and 1996 sanctions were not timely filed. One 60-260(b) motion was directed at the $5,250 sanction entered September 12, 1995. The K.S.A. 60-260(b) motion directed at the 1996 sanction was filed just over 14 months after the Board’s September 7, 1999, decision to close the file on the Seiffert, Rubin, and the firm of Rubin, Brown & Gomstein tax return investigation.
A ruling on a motion to vacate and set aside a judgment rests largely within the district court’s discretion. Without a showing of abuse of discretion this court on appellate review will not reverse the district court’s order. Lee v. Brown, 210 Kan. 168, 170, 499 P.2d 1076 (1972). We find no abuse of discretion in Judge Sheppard’s denial of Duree’s K.S.A. 60-260(b) motion on the 1995 sanction.
One of Duree’s problems here, concerning the 1996 sanction, is that he fails to explain why his “new evidence” could not have been presented before. The district court found:
“[W]ith respect to newly discovered evidence . . ., the opportunity was available as part of the earlier proceedings to have presented such evidence and if this court were to consider the release, to have done so.”
K.S.A. 60-260(b)(2) allows the court to relieve a party or the party’s legal representative from a final judgment order where there was “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259.” Apparently Duree attempted to side-step the K.S.A. 60-260(b)(2) 1-year statutory time limit by deciding to file his motions under subsection (4).
Duree could have presented additional evidence concerning the validity of the amended 1989 tax return in the earlier proceedings. Duree has failed to show that the district court abused its discretion in finding that his 60-260(b) motion challenging the 1996 sanction was untimely.
In his appellate brief, Duree mentions in passing that he is entitled to relief under K.S.A. 60-260(b)(4) or (6). Subsection (6) allows relief where there is “any other reason justifying relief from the operation of the judgment.” The general rule is that the first five grounds of K.S.A. 60-260(b), that are specific, and the sixth, that is the general catch-all, are mutually exclusive. K.S.A. 60-260(b)(6) is hot available if the asserted grounds for relief are within the coverage of another provision of K.S.A. 60-260(b). State ex rel. Secretary of SRS v. Keck, 266 Kan. 305, Syl. ¶ 1, 969 P.2d 841 (1998). Since Duree’s asserted grounds for relief are covered within 60-260(b)(4) (void judgment), there is no need to reach the 60-260(b)(6) contention.
Frivolous Appeal
DAI has requested that we rule that Duree’s appeal is frivolous under Supreme Court Rule 7.07(c) and assess Duree the cost of reproduction of DATs brief and reasonable attorney fees. See Supreme Court Rules 7.07(b) and (c) (2001 Kan. Ct. R. Annot. 52) and 5.01 (2001 Kan. Ct. R. Annot. 31). We decline to do so.
DAI says in its brief:
“As Judge Russell commented early in the case, T don’t think that any judge likes to award sanctions.’ Apparently adhering to that sentiment, in the proceedings below, Judge Sheppard thought that DAI’s motion to sanction Mr. Duree was a ‘close call,’ but declined to grant it, because of Mr. Duree’s emotional involvement in advancing his position. Though DAI disagrees with Judge Sheppard’s ruling, DAI has not appealed it because DAI recognizes . . . that awarding sanctions is a matter that lies within the sound discretion of the trial court. However, the District Court’s decision not to sanction Mr. Duree’s filing of the motion to vacate does not prelude this Court from concluding that Mr. Duree should be sanctioned for filing a frivolous appeal.”
In his response, Duree argues that the 1995 sanction was not originally declared a final judgment. See K.S.A. 2001 Supp. GO-254. A search of the record shows that in 1995, Duree attempted to appeal the $5,250 sanction. Duree argued that the order for sanctions was appealable, but DAI countered that the 1995 sanction was not appealable until all pending matters were resolved. The Court of Appeals agreed with DAI, and the appeal was dismissed.
Although one would logically presume that Duree could have appealed the 1995 sanction at the same time he appealed the 1996 sanction in Subway I, the issue is not so easily resolved. In the journal entry awarding the 1996 sanction, the district court said: “There is no just reason for delay from this final judgment, and an immediate appeal may materially advance the ultimate termination of the litigation.” This language suggests finality to the actions upon which the 1996 sanction was based.
The 1995 sanction was based upon the same underlying misconduct. However, the journal entry awarding the 1995 sanction did not contain the specific language indicating finality. In paragraph one, it said: “This matter shall be stayed and no trial date set on plaintiff s Petition pending resolution of any appeal of the Court’s order and final judgment, as set forth in the August 7,1995 Journal Entry, granting DAI’s motion for summary judgment.”
Based on the circumstances surrounding the 1995 sanction and its finality, one could argue that Duree could not have appealed the 1995 sanction until all pending matters were resolved. The district court did not dismiss all remaining claims until November 27, 2000.
We also observe that the 1996 sanction of $408,445.25 affirmed in Subway 1 included attorney fees in the amount of $272,263.51, for Wiggin & Dana, and $74,077.03, for Turner and Boisseau, Kansas counsel. 266 Kan. at 448.
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The opinion of the court was delivered by
Davis, J.:
Charles Jones, age 16, was certified to stand trial as an adult on the charge of first-degree murder for the July 21,1998, shooting death of Robert Trzok. The victim was shot three times in the back of the head, causing his immediate death. On appeal, Jones alleged he was denied due process based upon lack of notice to his parents, in violation of K.S.A. 38-1636(a), and improper procedures of the court in certifying him to stand trial as an adult. He further alleged that the presumption under K.S.A. 38-1636(a)(2) that he is an adult violated his due process rights under the United States Constitution. Finally he contends that other trial errors, including violations of his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), require reversal of his conviction. Finding no reversible error, we affirm.
Facts
The State’s theory at trial was that Jones had been robbed and injured by Trzok prior to the shooting. After identifying Trzok’s parked car, Jones and his friend LaKevis Tensley entered die house where Trzok and four others, Jeffrey Fields, Ronald Haskins, S.W., and E.G., were drinking and consuming drugs. Jones and Tensley beat Trzok and drug him out of the house and onto the front porch where Jones shot Trzok three times in the back of the head.
Motive Evidence
Tracy Thomas, an emergency room nurse, testified that days prior to the shooting death of Trzok, she treated a male who identified himself as Santos Metcalf, for a serious mouth laceration. The person purporting to be Santos Metcalf explained he was hurt by riding his bicycle into a clothes line. A doctor sutured the person’s mouth and sent him home. Sandra Metcalf, Jones’ cousin, testified that Santos Metcalf is her brother and that he had never had a laceration to his mouth. She testified it actually was Jones who had suffered the injury to his mouth.
LaKevis Tensley
Tensley testified regarding the events of July 21, 1998. Tensley was driving when he saw Jones walking and picked up Jones. They continued to ride around getting high by smoking marijuana. Tensley observed injuries to Jones mouth, which Tensley believed oc curred while someone tried to rob Jones. Jones spotted the car belonging to the man who robbed him. Tensley testified he believed Jones merely wanted to beat the guy who had robbed him. Tensley and Jones carried guns as they walked to the house.
Jones entered the house first. By the time Tensley entered the house, Jones was already talking to Trzok. Both Tensley and Jones were wearing bandannas to conceal their identity. Jones asked Trzok to come outside and when Trzok refused, Tensley struck Trzok in the face and kicked Trzok before dragging Trzok out of the house. According to Tensley, when he reached the outside of the house he began running to his car. It was not until Tensley was running to his car that he heard shots. Tensley and Jones left in Tensley’s car. Tensley dropped Jones off at his grandmother’s house.
Jeffrey Fields
Fields testified that he had known Trzok for a few months before Trzok’s murder. On the day of the murder, Trzok drove his own car to Fields’ house, arriving at 9 a.m. Fields and Trzok began smoking crack cocaine at that time. E.G., S.W., and Haskins all arrived later. Those at the house drank alcohol and consumed crack cocaine and marijuana. According to Fields, Trzok purchased most of the crack, spending between $700 to $1,000.
Late in the evening, Haskins unlocked the front door and permitted two people to enter. Fields testified Jones entered first, and then a second person entered sometime thereafter. Fields testified he did not recognize Jones at first as one of the intruders, but said he had recognized him as someone whom he had seen previously in the neighborhood. Fields said Jones and Tensley wore bandannas over their faces. Trzok did not want to go outside with Jones and Tensley. Fields told Trzok to get up and go outside to take care of his business with Jones and Tensley because Fields did not “like confusion inside [his] home.” Fields confirmed there was a struggle to get Trzok outside. Fields noticed Jones had a gun which looked like a revolver. When Jones and Tensley dragged Trzok out of the house, Fields shut and locked the door. Fields observed Jones bend down to shoot Trzok.
Later, during an interview at the police department, Fields identified Jones from a lineup as the man who shot Trzok. Fields denied that he, Haskins, S.W., or E.G. had anything to do with Trzok’s murder.
Ronald J. Haskins, Sr.
Haskins, who is Fields’ uncle, arrived at Fields’ house around noon the day of Trzok’s murder. Haskins confirmed that he drank alcohol and got high while at Fields’ house. According to Haskins, he heard a knock, saw Jones outside, and yelled out to Fields to announce Jones’ presence. Fields authorized Haskins to unlock the door for Jones. Haskins identified Jones as the person standing on the porch. Although Jones put on a bandanna when he entered the house, Jones was not wearing the bandanna when Haskins saw him standing outside the house.
Haskins testified that Jones entered the house and told Trzok to leave the house. Haskins confirmed that a second man then entered the house and both Tensley and Jones beat Trzok and drug him outside. After Jones and Tensley dragged Trzok outside, Has-kins heard gunshots. Haskins also picked Jones out of a photo lineup.
S.W. and E.G.
S.W.’s testimony was consistent with Fields and Haskins regarding the events on the evening of the murder, but S.W. could not identify either of the intruders. E.G. also testified at trial. E.G.’s testimony confirmed the events leading up Trzok’s murder. E.G. identified Jones as the first of the two intruders.
Investigation of Scene
Dr. Erik Mitchell, a forensic pathologist, performed the autopsy identifying three gunshot wounds to the back of Trzok’s head. Trzok had cocaine, but no alcohol, in his blood at the time of his death. Dr. Mitchell also identified numerous other injuries to Trzok’s shoulder, left arm, back of right hand, back of right elbow, and left lower back. The cause of death was the gunshots wounds to the head.
Don Garrett, a police officer, testified that he recovered three bullets from the scene: two were under Trzok’s head and another lodged in the house next door. Dr. Mitchell removed a fourth bullet from Trzok’s body.
William Newhouse, the chief criminalist with the firearms and toolmark section with the police department, analyzed the bullets from the scene. Newhouse testified the bullets were fired from the same gun, which had to be a ,38/.357 caliber weapon.
Sophia Barajas, a police officer, testified she was immediately dispatched to the scene after shots were reported. Officer Barajas testified the red car parked in front of Fields’ house belonged to Trzok.
Jones’ Flight to Iowa
Jones’ cousin Metcalf testified that Jones stayed with her on Wednesday night, which was the night after the murder. On Thursday evening, Metcalf and her boyfriend drove Jones to Des Moines, arriving early Friday morning. Metcalf and her boyfriend dropped Jones off at his mother’s apartment.
Greg Trimble, an officer with the Des Moines police department, testified that he was called on Friday to help the Federal Bureau of Investigation in finding Jones. Officer Trimble arrested Jones. According to Officer Trimble, Jones continually questioned Officer Trimble about the purpose for the arrest. Upon learning of the allegations, Jones denied being responsible for any murder; however, his denial assumed that the murder was committed with a gun, a fact that had not been revealed to Jones.
Jan Bjurstrom, an officer with the Des Moines police department, testified that she noticed blood on Jones’ shoe. Jones explained it was blood from his mouth injury. Officer Bjurstrom seized the shoes and gave them to Kansas detectives who had come to Des Moines to interview Jones.
DNA Evidence
Linda Netzel, a senior criminalist with the Kansas City, Missouri, police department, testified about the DNA analysis of blood extracted from Jones’ shoe. Netzel testified the blood on Jones’ shoe matched Trzok’s blood. Further, Netzel excluded Jones’ own blood from possibly matching the stain. Netzel testified there was a 1 in 32 million chance of finding another person with DNA also matching the stain. Netzel also testified about a phenomenon in DNA analysis known as spillover, which could potentially render the test invalid. However, Netzel testified that spillover was not possible in her analysis.
Jones’ Case in Chief
Dr. Dean Stetler, a professor at the University of Kansas, testified regarding the DNA analysis and how it is not impervious to human error. Dr. Stetler identified a particular type of error, cross-contamination:
“As I described, you have the tubes there. You’re transferring volume from this tube and then next to it you are transferring a volume from the next tube. If you forget to eject the pipette tip or get the numbers mixed up, then there is a possibility you have cross-contaminated or that you’ve mixed them up. And that happens in the preparation or the setup of the restriction gel and during the preparation and performance of the restriction enzyme digestion.”
According to Dr. Stetler, the process used by the State risked such cross-contamination.
Dr. Stetler also testified about spillover:
“This is the final step in the analysis and there is always a possibility of a spillover. That is, one tries to put all the DNA in this little well. Because of the nature of the procedure, it’s possible that some of that DNA will end up in an adjacent well.
“Q. What’s the effect on your results potentially even if that’s a little-bitty spillover?
“A. Well, if you have a known sample with a lot of DNA in it right next to an evidence sample with no or very litde DNA in it, then it appears that this evidence sample had DNA from this individual.”
Spillover invalidates the results of DNA testing. Dr. Stetler testified spillover “might have occurred” in the DNA analysis of the State.
On cross-examination, the prosecutor pressed Dr. Stetler on the issue of whether spillover occurred:
“Q. The answer would be, Dr. Stetler, then that you cannot testify beyond a reasonable degree of scientific certainty that spillover has occurred in this case?
“A. I can’t be certain one way or the other.”
(1) Notice
Jones argues the trial court, in violation of the Due Process Clause of the United States Constitution, authorized the State to prosecute Jones as an adult without proper notice to his parents. K.S.A. 38-1636 governs the procedure for authorizing the prosecution of a juvenile under the adult criminal statutes. To begin the procedure, the State must file a motion with the court. K.S.A. 38-1636(a). K.S.A. 38-1636(c)(l) provides, in relevant part: “The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent.”
The State filed a motion to authorize the prosecution of Jones, age 16, as an adult. At the hearing on the State’s motion, Jones’ attorney objected to the authorization to prosecute as an adult because Jones’ parents had not received notification of the hearing. Jones’ attorney admitted that he had been given notice. Jones’ attorney asked the court to wait until the parents could be given notice.
The State argued in response that it neither knew who Jones’ parents were nor how to find them. In ruling on the State’s motion to prosecute Jones as an adult, the court rehed on the State’s representation: “The information I have from the State is they were not aware of the addresses of the parents and did not know how to contact them.” The court declined Jones’ request to postpone ruling on the motion, and authorized the State to prosecute Jones as an adult. At the close of the hearing the court noted:
“Further additions to the record .... After the hearing, I spoke with both Ms. Meyer, of the District Attorney’s Office, and Mr. DeGraff, court-appointed counsel; and Mr. DeGraff told me that at the time he made his argument regarding notification of the parents, he was not aware that the mother of Mr. Jones was, in fact, in the courtroom, that she apparently came a little bit later. There were numerous relatives in the courtroom whom he spoke to ahead of time. Therefore, as I stated earlier, clearly a parent did receive some type of notice of this hearing, and I believe the statute was complied with.”
The State knew Jones’ mother lived in Des Moines, as Jerry Fiscus, a retired detective with the police department, drove to Des Moines to interview Jones. Another detective telephoned Jones’ mother to get permission to interview Jones as required by Iowa law. During Officer Bjurstrom’s testimony, she said she went to “315 S. E. McKinley, Apartment 42,” Jones’ mother’s apartment, to arrest Jones. Thus, the State knew how to contact Jones’ mother. Its statement to the trial court about lack of knowledge as to the whereabouts of Jones’ mother was untrue. The prosecutor failed to check with the arresting office. In this appeal, the State concedes this point.
The State emphasizes the language “if possible” in K.S.A. 38-1636(c)(1) to argue the statutory mandate is not as emphatic as it might be. The State also implies with a quotation from State v. Muhammad, 237 Kan. 850, 703 P.2d 835 (1985), that the interests at stake in a proceeding to authorize prosecution as an adult are not sufficiently critical that reversal is necessary if the parents do not have notice.
Jones cites In re Gault, 387 U.S. 1, 4, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), which reversed the Arizona Supreme Court’s decision to affirm the dismissal of a habeas corpus action. Gault, a 15 year old, was adjudicated a juvenile delinquent and committed to a juvenile facility. The United States Supreme Court held that Gault was, in part, entitled to habeas corpus relief because the State of Arizona had failed to provide adequate notice of the charges against him. 387 U.S. at 31-34. The Gault Court described the type of notice required:
“Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ It is obvious, as we have discussed above, that no purpose of shielding the child from the public stigma of knowledge of his having been taken into custody and scheduled for hearing is served by the procedure approved by the court below. The ’initial hearing’ in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. Nor, in the circumstances of this case, can it reasonably be said that the requirement of notice was waived." (Emphasis added.) 387 U.S. at 33-34.
This court discussed a due process argument based on Gault in Muhammad. Muhammad was not able to attend the hearing on the State’s motion to prosecute her as an adult because the State arrested her, mistaking Muhammad for her sister. Muhammad was represented by an attorney at the hearing. The court in Muhammad framed the issue as to whether the defendant had been “denied due process of law when the court waived its juvenile jurisdiction over her, pursuant to K.S.A. 1984 Supp. 38-1636(d), without her being present at the hearing.” 237 Kan. at 851. This court discussed Kent v. United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966), and Gault. After its discussion of the above cases, this court emphasized the civil nature of juvenile proceedings. 237 Kan. at 854. In its concluding paragraphs, this court rephrased the issue, emphasizing the fact that Muhammad was represented by counsel: “The critical question here is whether the court may conduct a hearing without a voluntary waiver of appearance by the juvenile if counsel is present and allowed to participate on the juvenile’s behalf.” (Emphasis added.) 237 Kan. at 856. The Muhammad court stressed that while the hearing
“involves a substantial right subject to the requirements of due process, it is not adjudicatory in nature in that it does not result in any determination of guilt or innocence or in confinement or punishment. It is merely a preliminary process to determine the type of adjudicatory procedure to be carried out at a later date. The only decision is dispositional in that the court determines whether further proceedings will be under the juvenile offenders code or under the Kansas criminal code. As indicated earlier the statutes require that the juvenile must be represented and that the attorney be present for the hearing. Under such circumstances, the defendant was not denied due process of law.
“We hold that when the provisions of K.S.A. 1984 Supp. 38-1636 requiring a hearing, notice and the right of the juvenile to be present and participate in the hearing are met, along with the statutoiy requirement of counsel, the ‘essentials of due process and fair treatment’ required by Kent are satisfied even though the juvenile fails to appear.” 237 Kan. at 856.
The issue in this case is whether the defendant has been denied due process of law where the State has failed to comply with the provisions of K.S.A. 38-1636(c):
“(c)(1) Upon receiving a motion as established in subsection (a) [petition to prosecute as an adult], the court shall set a time and place for hearing on the motion. The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent. The motion shall be heard and determined prior to any further proceedings on the complaint.” (Emphasis added).
While statutoiy notice to the parents was not given in accordance with K.S.A. 38-1636(c)(l), and at least to this extent the provisions of K.S.A. 38-1636(c) were violated, we do not believe that the violation amounted to a denial of due process to the respondent. Jones was represented by counsel at both the detention hearing and at the hearing on the motion to prosecute him as an adult. Unlike In re Gault relied upon by Jones, the notice in this case did not deal with a failure to provide Jones, Jones’ counsel, and Jones’ parents with notice of the charges. Lack of notice of the charges strikes at the heart of due process for without such notice, preparation is impossible and the resulting hearing is meaningless. Jones’ counsel agreed that both he and the respondent received adequate advance notice of the hearing and the purpose of the hearing. Jones was represented by counsel throughout the proceedings. Moreover, as this court noted in Muhammad, the hearing was not adjudicatory but dispositional. While a substantial right was involved, the hearing did not result in the determination of guilt or confinement. 237 Kan. at 856.
The trial court also noted in concluding the hearing that the notice provisions had been complied with based upon the mother’s presence at the hearing. She received actual notice which served to satisfy the dictates of K.S.A. 38-1636(c)(l). Other than the notice provisions objection, Jones presented no evidence to rebut the presumption in K.S.A. 38-1636(a)(2). There was no suggestion the failure to serve Jones’ mother with notice caused Jones any prej udice, i.e., Jones does not argue his mother could have provided some evidence to rebut the presumption in K.S.A. 38-1636(a)(2) had she been served with notice.
Muhammad recognized that K.S.A. 38-1636 was based on the due process principles discussed in Kent. See Muhammad, 237 Kan. at 853 (“Our statute, based largely on Kent, provides numerous safeguards in the procedure for determination of whether a juvenile is to be prosecuted as an adult.”). As the discussion of Gault in Muhammad shows, Jones was afforded the necessary protections of due process when he was present and represented by counsel at all critical stages of the proceedings. 237 Kan. at 853-54. Thus, the violation of K.S.A. 38-1636(c)(l) does not rise to the level of a violation of due process. To reverse the present case would not further the purpose of the statute as revealed in Muhammad, i.e., guaranteeing juvenile defendants due process.
(2) Trial court’s consideration of K.S.A. 38-1636(e) factors.
Jones argues that the trial court failed to consider all the factors in K.S.A. 38-1636(e) when authorizing the State to prosecute him as an adult. K.S.A. 38-1636(e) provides:
“In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution. The insuffi ciency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue. Subject to the provisions of K.S.A. 38-1653, and amendments thereto, written reports and other materials relating to tire respondent’s mental, physical, educational and social history may be considered by the court.”
This court’s standard of review is set forth in State v. Medrano, 271 Kan. 504, 506-07, 23 P.3d 836 (2001):
“The standard for reviewing the decision to authorize prosecution as an adult is whether the decision is supported by substantial evidence. [Citations omitted.] Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can be reasonably be resolved. [Citation omitted.] It is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. [Citation omitted.]”
The State disputes that K.S.A. 38-1636(e) requires the court to mention all the factors for consideration. Further, the State argues there was sufficient evidence to support the court’s decision.
At the hearing on the State’s motion to prosecute Jones as an adult, the court first required that Jones either admit or deny (1) that Jones was 16 years old at the time of the crime; and (2) that the State was charging Jones with an off-grid person felony. According to K.S.A. 38-1636(a)(2)(A), the above facts trigger a presumption that the defendant should be prosecuted as an adult with the burden of proof to rebut the presumption placed on the juvenile. Jones’ attorney admitted to both of die facts. The court then announced the burden shifted to Jones to rebut the presumption. Jones presented no evidence in rebuttal and limited his response to the issue of notice discussed above.
In Medrano, we said:
“K.S.A. 38-1636(e) does not require the magistrate to mention the factors used in certifying a juvenile to be tried as an adult when rendering the decision. The court’s standard for certifying applies to the evidence rather than to the analysis of the decision maker. [Citation omitted.]
“K.S.A. 38-1636(e) sets forth the factors to be considered when determining whether to treat a defendant as an adult or a juvenile. These factors must be considered by the court even where there is a presumption that the defendant is an adult under 38-1636(a)(2).” 271 Kan. at 507.
See also State v. Avalos, 266 Kan. 517, 521, 974 P.2d 97 (1999) (K.S.A. 38-1636[e] does not require the magistrate to mention the factors.) But consideration of the eight factors is required when the K.S.A. 38-1636(a)(2) presumption applies. Medrano, 271 Kan at 507. Once the presumption applies the burden to rebutt rests on the defendant: “The presumption can be overcome.” State v. Coleman, 271 Kan. 733, 738, 26 P.3d 613 (2001).
Jones presented no evidence regarding the eight factors in K.S.A. 38-1636(e). Factors 1, 2, 3, and 5 were established by substantial competent evidence based upon Jones’ admissions to the trial court during the certification hearing and Jones’ record of a prior juvenile adjudication. The execution style shooting was an aggressive, violent, premeditated, and willful act resulting in the death of Trzok. In the face of the statutory presumption that Jones should be tried as an adult, he presented no evidence in rebuttal regarding any of the remaining factors. K.S.A. 38-1636(e) specifically provides that “insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue.” Implicit in the trial court’s decision based upon the entire record together with the statutory presumption, the absence of any evidence rebutting the statutory presumption, and the trial court’s consideration of K.S.A. 38-1636(e) in its final decision, we conclude that the decision to tiy Jones as an adult was supported by substantial evidence.
Jones relies on State v. Smith, 268 Kan. 222, 993 P.2d 1213 (1999), a case involving five defendants, wherein this court reversed a district court’s authorization to prosecute Adam Gault, a juvenile codefendant, as an adult. 268 Kan. at 246. Gault was originally charged with misdemeanor theft and conspiracy to commit theft by deception. The most serious version of theft was a level 7, nonperson felony. See K.S.A. 2001 Supp. 21-3701(b). Thus, the presumption of adult status did not arise in Smith. The court noted the State’s motion was conclusory and failed to directly address the factors in K.S.A. 38-1636(e), with no other evidence offered. 268 Kan. at 245.
Smith provides little, if any, support for Jones. Jones was charged with first-degree murder, while Smith was charged with theft by deception. There was no burden for Smith to rebut any evidence presented by the State. However, the statutory presumption in K.S.A. 38-1636(a)(2) applied in Jones’ case and placed a burden to rebut on Jones.
(3) K.S.A. 38-1636(a)(2) Presumption
Jones argues that the presumption in K.S.A. 38-1636(a)(2) that certain juvenile offenders are presumed to be adults violated his due process rights. In Coleman, this court held “[t]he presumption in K.S.A. 38-1636(a)(2) does not violate procedural due process rights.” 271 Kan. at 738. Appellate defense counsel did not have the benefit of the Coleman decision at the time his brief was submitted. However, Coleman was decided before oral argument and counsel acknowledged that Coleman applied. Coleman is dispositive of this issue.
(4) Apprendi v. New Jersey
Jones argues that because the trial court’s decision to authorize adult prosecution pursuant to K.S.A. 38-1636 substantially increased the penalty for the offense, the principles cited in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), render that decision a violation of the Sixth and Fourteenth Amendments to the United States Constitution. This issue raised is one of law, and our standard of review is unlimited. State v. Sanders, 272 Kan. 445, 461, 33 P.3d 596 (2001).
Jones’ argument may be summarized as follows: Apprendi held that “[ojther 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 juiy, and proved beyond a reasonable doubt.” 530 U.S. at 490. Jones reasons that Kansas law runs afoul of Apprendi because the fact that he should be tried as an adult is made by a judge resulting in a penalty beyond the statutory maximum.
In our consideration of this issue, we must determine whether a decision under K.S.A. 38-1636 to authorize adult prosecution of a juvenile increases the penalty for a crime beyond the prescribed statutory maximum. Implicit in Jones’ argument is that the statu tory maximum is the one under the juvenile system, not the Kansas criminal code. Sentencing under die Kansas criminal code does not exceed the prescribed statutory maximum.
K.S.A. 38-1636
K.S.A. 38-1636 provides the procedure for authorizing adult prosecution of a juvenile, which in this case involves the analysis of a presumption and rebuttal of that presumption. According to the statute, there are two types of cases: (1) cases where the juvenile is presumed to be a juvenile and the burden of proof is on the State to prove “good cause” to prosecute the juvenile as an adult, K.S.A. 38-1636(a)(l); and (2) cases where the juvenile is presumed to be an adult and the burden of proof is on the juvenile to rebut the presumption, K.S.A. 38-1636(a)(2). The first type of case is not at issue here. Under the second type of case, the adult presumption arises in two circumstances: (1) where the juvenile is of a certain older age and is charged with certain serious offenses; or (2) where the juvenile has a certain criminal history. K.S.A. 38-1636(a)(2). Only the first of these alternatives is at issue in this present case. Thus, for the presumption at issue to arise, as it did in this case, the court must make the following findings: (1) the age of the juvenile; and (2) the type of crime charged.
K.S.A. 38-1636(e), as quoted above, sets forth a list of factors to be considered by the court in deciding whether a juvenile is to be tried as an adult. These factors require a mixed analysis of (a) the details of the allegations against the juvenile, as well as (b) the juvenile’s amenability to treatment under the juvenile system. Factors 1 through 5 require the court to consider the juvenile and what he or she has done in the past, including the State’s allegations giving rise to the present case. Factor 6 requires the court to evaluate the “sophistication or maturity” of the juvenile and to consider the juvenile’s “home, environment, emotional attitude, pattern of living or desire to be treated as an adult.” Factor 7 requires the court to determine whether the resources available in the juvenile system can rehabilitate the juvenile. Factor 8 requires the court to determine whether the interests of the community and the juvenile would be better served by an adult prosecution.
K.S.A. 38-1636.(f)(l) permits the court to authorize the adult prosecution of a juvenile if the court finds “substantial evidence that the respondent should be prosecuted as an adult,” in which case the adult criminal procedure becomes applicable and the juvenile case is dismissed.
Apprendi
The Court in Apprendi considered a New Jersey law punishing the “possession of a firearm for an unlawful purpose.” 530 U.S. at 468. If convicted of this crime, the New Jersey law also provided for an increased sentence if the trial judge found that the crime was committed with the purpose of intimidating certain people, known as a hate crime law. The Court framed the issue as whether due process required the factual determination authorizing the increased sentence to be made by a jury beyond a reasonable doubt. The Court answered the question in the affirmative. 530 U.S. at 490.
In Apprendi, the State defended its statute by pointing out how the required finding of “biased purpose is not an ‘element’ of a distinct hate crime offense, but rather the traditional ‘sentencing factor’ of motive.” 530 U.S. at 492. The Court rejected the argument, finding that “the relevant inquiry is one not of form, but of effect.” 530 U.S. at 494; see State v. Gould, 271 Kan. 394, 410, 23 P.3d 801 (2001) (“Under Apprendi, it does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury’s verdict.”).
Kansas Cases
This court in State v. Hitt, 273 Kan. 224, Syl. ¶¶ 1 and 2, 42 P.3d 732 (2002), rejected an argument that Apprendi required “the fact of a prior juvenile adjudication ... be charged in the indictment and proven to a jury beyond a reasonable doubt before it can be included in a defendant’s criminal history score.” The Hitt court examined the reasoning behind the Apprendi Court’s exception of “prior conviction” from its rule. Having established that the rationale for the exception for prior convictions relies in part on the procedures satisfying fair notice, reasonable doubt, and jury-trial guarantees, the Hitt court proceeded to face the fact that a juvenile adjudication contained fewer safeguards than an adult conviction. The Hitt court discussed the split a similar issue caused the Ninth Circuit Court of Appeals in U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001). The Hitt court discussed the Juvenile Justice Code, pointing out that special treatment is not constitutionally required, but is rather created by statute. The court also pointed out how certain rights afforded a defendant under the adult system are not constitutionally required for a respondent under the juvenile system, as stated in State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996).
In its analysis, the Hitt court noted the disruption the defendant’s interpretation of Apprendi would cause. The court noted that in Gould, the Apprendi rule clearly applied, but the same could not be said in Hitt’s case. Before causing such a disruption in the Kansas juvenile system, this court would require a clear mandate from the United States Supreme Court. 273 Kan. at 235. This court reasoned that (1) Apprendi relied only on general “procedural safeguards” — not “all procedural safeguards afforded adults,” and (2) the procedural safeguards under the juvenile system were sufficient to come under Apprendi s rationale for the exception of prior convictions. 273 Kan. at 235-36.
K.S.A. 38-1636(c)(2) provides that at the hearing to determine whether a juvenile will be tried as an adult, the court shall inform the respondent of the following:
“(A) The nature of the charges in the complaint;
“(B) the right of the respondent to be presumed innocent of each charge;
“(C) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
“(D) the right to subpoena witnesses;
“(E) the right of the respondent to testify or to decline to testify; and
“(F) the sentencing alternatives the court may select as the result of the juvenile being prosecuted under an extended jurisdiction juvenile prosecution.”
In addition, the respondent is entitled as a matter of right to be represented by counsel at all stages of proceedings. However, the determination of whether to try the juvenile as an adult is not a jmy determination and ultimately is determined on the basis of whether there is substantial competent evidence to support a final determination that the juvenile be tried as an adult. Kansas law, from its inception to date, has treated juveniles under a comprehensive system which has been modified by statute and case law, such as the decision in In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967). However, the decisions of the United States Supreme Court, as well as of this court and of courts throughout the remainder of states, have always treated juveniles different than they would be treated under adult criminal systems. The procedural safeguards are deemed adequate to withstand the demands for jury determinations within the juvenile system, as well as to support other differences afforded in the adult system but not in the juvenile system.
The determination that a jury is not required in the juvenile system has been considered by the United States Supreme Court. In McKeiver v. Pennsylvania, 403 U.S. 528, 545-51, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971), the Court in a plurality decision described 13 reasons why a jury trial is not necessary at the “adjudicative stage” in a juvenile proceeding. Among the stated reasons are (1) preventing the juvenile proceedings from becoming a “fully adversary process,” thereby putting “an effective end to what has been the idealistic prospect of an intimate, informal protective proceeding,” 403 U.S. at 545; (2) requiring a juiy trial would “bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial,” 403 U.S. at 550; and (3) equating the juvenile system to the adult system — as is necessary to argue the juvenile is entitled to the same rights as the adult — would “ignore . . . every aspect of fairness, of concern, of sympathy, and of .paternal attention that the juvenile court system contemplates.” 403 U.S. at 550.
We conclude that the above reasons, as well as the other procedural safeguards provided for in K.S.A. 38-1636, are sufficient and support a determination that certification proceedings under our statutory scheme for the care and treatment of juveniles fall outside the dictates of Apprendi.
The Kansas Court of Appeals has considered and rejected the precise argument raised by Jones. State v. Hartpence, 30 Kan. App. 2d 486, Syl. ¶ 4, 42 P.3d 1197 (2002). The Hartpence court classified Apprendi as dealing with the sentencing phase of a prosecution, while the K.S.A. 38-1636 procedure is a jurisdictional matter where the decision is made which court will resolve the case. 30 Kan. App. 2d at 496.
Other Jurisdictions
The New Mexico Court of Appeals in State v. Gonzales, 130 N.M. 341, 24 P.3d 776 (Ct. App. 2001), held that its system of permitting juvenile courts to sentence offenders as adults if the court finds by a preponderance of the evidence that the offender is either (1) not amenable to treatment as a child or (2) ineligible for commitment in an institution, did not violate the rule in Apprendi. 130 N.M. at 350. The court distinguished its system of determining that a child is not amenable to treatment within the juvenile system from the traditional findings of criminal liability in three ways:
“First, while findings of guilt are measures of the degree of an individual’s criminal culpability, the finding that a child is or is not amenable to treatment is a measure of a child’s prospects for rehabilitation. Second, while findings of guilt are based on historical facts susceptible of proof beyond a reasonable doubt, a finding that a child is not amenable to rehabilitation requires a prediction of future conduct based on complex considerations of the child, the child’s crime, and the child’s history and environment. Third, a determination of amenability or eligibility for commitment requires some foreknowledge of available facilities and the programs in them that trial judges who make sentencing decisions every day have, while juries do not.” 130 N.M. at 348-49.
The Appellate Court of Illinois rejected an argument similar to Jones’ in People v. Beltran, 327 Ill. App. 3d 685, 765 N.E.2d 1071 (2002):
“Superficially, defendant appears to proffer a valid application of Apprendi. Nevertheless, his argument fails because he attempts to divorce the case’s holding from its legal basis. New Jersey’s ‘hate crime’ law violated due process because, as the accused in a criminal prosecution, the defendant had the right to have a jury determine, beyond a reasonable doubt, the facts that established the maximum penalty. A hearing under section 5-805(2) [adult prosecution], however, is a juvenile proceeding. Thus, whether defendant was denied due process depends on the standards applicable to those proceedings, rather than those applicable to criminal prosecutions. [Citation omitted.]
“It is well established that, in a juvenile proceeding, due process does not require a jury. [Citations omitted.] As for the standard of proof, due process requires proof beyond a reasonable doubt during the adjudicatory stage of a juvenile proceeding .... However, that standard does not apply to the dispositional stage of a juvenile proceeding. [Citation omitted.]
“A hearing under section 5-805(2) is dispositional, not adjudicatory. That is, the hearing determines not the minor’s guilt but the forum in which his guilt may be adjudicated. [Citation omitted.] Thus, although the juvenile court made findings that exposed him to a greater sanction, defendant had no due process right to have a jury make those findings beyond a reasonable doubt. Because Apprendi bears only on the process due in criminal proceedings, the case is simply inapplicable here.” 327 Ill. App. 3d at 690-91.
Beltran relies on the lesser process due in a juvenile proceeding, thereby distinguishing juvenile proceedings from the principles announced in Apprendi.
The Supreme Judicial Court of Massachusetts in Commonwealth v. Quincy Q., 434 Mass 859, 753 N.E.2d 781 (2001), found Apprendi applicable. In Massachusetts, the State must prove to a grand jury three factors to proceed against juveniles by indictment under the youthful offender statute, which authorizes increased sentences beyond the statutory maximum otherwise permitted for juveniles:
“(1) [T]he alleged offense was committed while the individual was between the ages of fourteen and seventeen years; (2) if he were an adult, the offense would be punishable by imprisonment in the state prison (i.e., a felony); and (3) the individual was previously committed to the department of youth services, or the alleged offense involved certain enumerated firearms violations, or it involved ‘the infliction or threat of serious bodily harm.’ ” 434 Mass. at 862 (citing Mass. Gen. L. ch. 119, § 54 [1996]).
While the Quincy Q court disagreed that the State met its burden of proof in the indictment, a clearly established requirement, the court continued to address the implications Apprendi had on the Massachusetts’ system. The court held that Apprendi required a jury to find the facts making an indictment appropriate:
“Similar to the New Jersey hate crime statute, the youthful offender statute authorizes judges to increase the punishment for juveniles convicted of certain offenses beyond the statutory maximum otherwise permitted for juveniles, if the requirements set forth in G .L. c. 119, § 54, have been satisfied. [Citation omitted.] We recognize that a juvenile court system, in which juveniles are given preferential treatment, is not constitutionally required. [Citation omitted.] However, once the Legislature enacted a law providing that the maximum punishment for delinquent juveniles is commitment to the Department of Youth Services (department) for a defined time period, see G. L. c. 119, § 58, any facts, including the requirements for youthful offender status, that would increase the penalty for such juveniles must be proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, supra. Accordingly, if the Commonwealth determines to proceed against a juvenile by indictment, it must present at the grand jury stage sufficient evidence of the underlying offense to warrant a finding of probable cause that the underlying crime has been committed, [citation omitted], as well as sufficient evidence that the requirements set forth in G. L. c. 119, § 54, have been met.
“At trial of offenses brought by indictment, the Commonwealth, of course, must prove to a jury beyond a reasonable doubt the elements of the underlying offense. It also must prove to a jury beyond a reasonable doubt those requirements set forth in G. L. c. 119, § 54 (i.e., that the child was between the ages of fourteen and seventeen years when the alleged offense was committed; the offense is punishable by imprisonment in State prison; and the child was previously committed to the department, the alleged offense involves certain enumerated firearms violations, or the alleged offense involves the infliction or threat of serious bodily harm).” 434 Mass. at 864-66.
The court held that if the jury did not find the factors used to indict, the court would have to sentence the defendant as a delinquent. 434 Mass. at 867.
Conclusion
Apprendi reviewed a law permitting a judge, after making a factual finding about the crime, to sentence a defendant beyond the statutory sentence authorized by the jury’s verdict. In the present case, the decision under K.S.A. 38-1636 does not follow a finding of guilt for any crime. The decision under K.S.A. 38-1636 determines whether there is substantial competent evidence to authorize prosecution of a juvenile as an adult under the applicable criminal statute. If that decision is in the affirmative, the juvenile will be exposed to the statutory maximum sentence under the applicable criminal statute, which in most cases will exceed the statutory maximum disposition in the juvenile system. However, the juvenile tried as an adult will be subjected to the statutory maximum sen tence under the applicable criminal statute only after a jury has determined his or her guilt beyond a reasonable doubt.
The determination under K.S.A. 38-1636 does not involve guilt or innocence, but involves the determination of which system will be appropriate for a juvenile offender. As indicated above, we conclude that the Kansas procedure for authorizing adult prosecution under K.S.A. 38-1636 does not violate the Sixth and Fourteenth Amendments to the United States Constitution. The juvenile system is different. Jones’ argument attempts to erode that difference and, thereby, potentially erode some of the protections offered by the juvenile system. As noted by this court in Hitt, Jones’ argument, if adopted, would cause substantial disruption in the juvenile justice system. Before causing such disruption, this court would require a clear mandate from the United States Supreme Court or state legislation. Finally, sentences imposed following certification to stand trial as an adult must not exceed the statutory maximum and every fact or factor determining such sentences must be proved beyond a reasonable doubt by a jury or a judge as fact finder before imposition of the sentence.
(5) Hearsay
Jones argues that the trial court violated the Confrontation Clause of the Sixth Amendment to the United States Constitution by admitting a videotape of the police interviewing Tensley.
The Sixth Amendment provides the criminal defendant the right to be “confronted with the witnesses against him.” The Kansas Constitution gives the criminal defendant the right “to meet the witness face to face.” Kan. Const. Bill of Rights, § 10. Although certain hearsay statements may be admissible as an exception to the hearsay rule, the Confrontation Clause may bar admission of such evidence. Idaho v. Wright, 497 U.S. 805, 814, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990). The appellate court reviews the trial court’s decision to admit or exclude hearsay evidence under the abuse of discretion standard of review. State v. Smith, 271 Kan. 666, 670, 24 P.3d 727 (2001).
The record indicates the trial court played Exhibit 43 for the jury, which was an audiocassette tape. From the record, it is dif ficult to determine exactly what portions of the tape were played for the juiy. The court first overruled Jones’ objection that admitting both the tape and the transcript of the interview was cumulative. The prosecutor started playing the tape, and then stopped the tape because of Jones’ hearsay objection. The tape was started again but there was another hearsay objection. The trial court announced its intention, out of the hearing of the jury, to instruct the jury to disregard any hearsay. The tape was started a third time, but stopped because the prosecutor wanted a bench conference. The record indicates the trial court said: “Go ahead and delete it and I won’t caution them.” The tape was started a fourth time and it played until the end. It is not clear from the record what parts the court was referring to when it referred to a deletion.
The transcript of Tensley’s interview was included in the record on appeal. The transcript indicates the following hearsay:
“Q. Do you know how he got that injury?
“A. Somebody tried to rob him.
“Q. Did his aunt tell you how he got that injury?
“A. Yes.
“Q. Okay, what is the aunt’s name and what did she tell you?
“A. Carletta and she told me that somebody tried to rob him.
“Q. Did she say that a white person had tried to rob him?
“A. Yes.
“Q. Explain exactly what she said.
“A. She had told me that, she said that Cody was coming down the street and his mouth was cut real bad and it looked like he was about to pass out. And he said somebody had tried to rob him and that’s the night she took him to the hospital and then he had told them that somebody had tried to rob him. He said a dude had pulled out a gun and said he was about to shoot him. He said he broke and ran into this open field and he messed up his mouth because he was running in zig zags so he wouldn’t get shot. That’s all.
“Q. Did she ever say that the person that tried to rob Cody said he was the police?
“A. Yes.
“Q. Did she say if he had a badge or just said he was the police?
“A. Just said he was the police.
"Q. Did she ever describe the car that this person was driving?
“A. A red Thunderbird.
“Q. Did Cody himself ever tell you that this person tried to rob him?
“A. Yes.
“Q. Did he tell you the same story as his auntie?
“A. No, I mean he didn’t, because he didn’t tell me. He just told me somebody in a red Thunderbird tried to rob him, that’s all because that’s all I asked him. Then that was it. His mouth was messed up and he couldn’t talk very much. You can hear what he was saying a little bit if there’s not a lot a noise.
“Q: Did anyone tell you he used Santos’ name?
“A. No.”
The tape recordings of Tensley s statements were properly admitted as an exception to the hearsay rule because Tensley testified at trial and was available for cross-examination. However, Tensley’s statements as to the aunt’s account of the robbery constituted inadmissible hearsay. The admission of such statements over Jones’ objection was error. See K.S.A. 2001 Supp. 60-460.
The State does not argue the statements were properly admissible but rather argues the error was harmless. The appellate court applies the federal constitutional error rule when there is a violation of a constitutional right. State v. Lyons, 266 Kan. 591, 598, 973 P.2d 794 (1999). Under the federal constitutional error rule, the appellate court must declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. 266 Kan. at 598.
Four eyewitnesses consistently described the events leading to Trzok’s death. Three of those witnesses were able to identify Jones. Consistent with the four eyewitnesses, Jones’ companion that night, Tensley, testified he and Jones beat and dragged Trzok out of the house. Importantly, the DNA evidence established that Trzok’s blood was on Jones’ shoe. Last, while the statements of Jones’ aunt established motive, the State had already established motive through Tensley’s testimony. Tensley established that he and Jones stopped at Fields’ house because the car belonging to the person who had robbed Jones was parked there. Based upon the overwhelming evidence of guilt and the fact that properly admitted evidence established motive, we conclude beyond a reasonable doubt that the statements of Jones’ aunt had little, if any, likelihood of having changed the result of the trial.
(6) Limitation of Cross-Examination
Jones argues the trial court improperly limited his cross-examination of Tensley, which violated Jones’ rights under the Confron tation Clause. See State v. Albright, 271 Kan. 546, 550, 24 P.3d 103 (2001) (“The Confrontation Clause of the Sixth Amendment to the United States Constitution affords an accused the right to cross-examination.”).
This court considered a similar argument in State v. Rinck, 256 Kan. 848, 888 P.2d 845 (1995). Rinck argued he should have been able to cross-examine an accomplice on the amount of prison time he would have received had he been tried as an adult. The court disagreed. The court noted the Confrontation Clause grants criminal defendants the right to cross-examination and that exposing a witness’ motivation for testifying is a proper function of cross-examination. Rinck reasoned the defendant was able to cross-examine the accomplice about his plea bargain. 256 Kan. at 854-55. The court concluded that “the defendant was allowed reasonable latitude in inquiring as to the nature of the bargain [the accomplice] had made with the State.” 256 Kan. at 855.
Rinck supports our conclusion that no error occurred. Jones was able to establish for the jury that Tensley was motivated by his plea bargain with the State and that he could have received up to 34 months in prison. Jones established that Tensley might not have to serve 15% of that sentence. Further, Jones was able to establish for the jury that Tensley had already served 18 months. The only link missing for the juiy was the connection between time served and the sentence eventually imposed, i.e., that the one would be subtracted from the other to determine how much time Tensley had yet to serve. The trial court did not abuse its discretion in limiting the scope of cross-examination. Jones clearly established the bias for the jury. The court offered Jones reasonable latitude in allowing him to cross-examine Tensley.
(7) Prosecutorial Misconduct
Jones argues the prosecutor committed sufficiently egregious misconduct to warrant a reversal of his conviction by (1) improperly commenting on the credibility of Jones’ expert, and (2) stating facts not admitted in evidence during closing arguments.
The court in State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000), described the approach to prosecutorial misconduct in the case of closing argument:
“The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. [Citation omitted.]”
The appellate court considers three factors to determine whether a new trial should be granted because of prosecutorial misconduct: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show 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. 268 Kan. at 508.
Normally, there can be no reversible error based on prosecutorial misconduct absent a contemporaneous objection. State v. McCorkendale, 267 Kan. 263, 278, 979 P.2d 1239 (1999). “If the prosecutor’s statements, however, rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.” 267 Kan. at 278.
Improper Comments on Witness Credibility
Jones argues the prosecutor improperly commented on the defense witness’ credibility. During closing arguments, the prosecutor made the following argument:
“Then the DNA evidence. You’ve heard from Linda Netzel. She is a trained professional trained to do forensic DNA. Forensic DNA is different than doing birds and fish and horses and wheat and all that other stuff. You know why? Because it’s serious business. Coming in and testifying about criminal matters is serious. If a bird is — if there is a mistake on bird DNA or something else, the consequences are not going to be as severe. And the regional crime laboratory in Kansas City, Missouri knows that. They do thousands and thousands of cases. She’s come in and testified hundreds of times. If there was a problem with the way they were doing their DNA analysis, don’t you expect it would have been fixed by this point in time?
“Instead, what we have is somebody that comes into a case that gets paid up to $120,000 a year to come in and criticize people that do this kind of work. You can test his credibility by that, just like you test [E.G.] and [S.W.’s] credibility because they get paid to provide services. Right? The only difference being [S.W.] and [E.G.] trade their services for crack cocaine.”
Jones failed to object to the above comments.
Jones complains that comparing his expert to “crack-prostitutes is outside the realm of fair comment.” Initially, it should be noted nothing in the above quotation is unsupported by the evidence at trial. S.W. testified she was selling sex for money and that she was buying crack that day. E.G. testified that she had sold sex for drugs in the past. Dr. Stetler testified he had made up to $120,000 for his expert opinions.
The prosecutor’s comments were not outside of the “considerable latitude” the prosecutor is allowed in discussing the evidence. First, the jury was instructed that the arguments of counsel were not evidence and that if the counsels’ arguments were unsupported by the evidence, they should be disregarded. Second, Jones misconstrues the nature of the prosecutor’s comments. The prosecutor was making the point for die jury that Dr. Stetler is paid for his testimony and that this arrangement may influence what he had to say. Exposing the bias or motive for testifying is a proper subject for cross-examination, State v. Jacques, 270 Kan. 173, 182, 14 P.3d 409 (2000), and, by extension, the prosecutor is free to argue this point to the jury if the evidence has established the facts. That Jones finds the argument disagreeable or unfavorable is not sufficient to render the argument improper.
Jones also complains that the above argument and, in particular, the following sentence from the above quotation, improperly bolstered the credibility of the State’s DNA expert: “If there was a problem with the way they were doing their DNA analysis, don’t you expect it would have been fixed by this point in time?” This sentence was not beyond the considerable latitude permitted to a prosecutor in closing argument. The prosecutor was asking the jury to use its collective common sense to conclude the State’s DNA analysis was sufficiently rehable to conclude that Trzok’s blood was on Jones’ shoe.
Arguing Facts Not in Evidence
Jones argues the prosecutor improperly argued facts not in evidence, based upon the following statements from the prosecutor s closing argument:
“And Ms. Pryor wants to say, well, what motive does the co-defendant have to lie? And she brings up the idea about this plea bargain, that’s his motive to lie. Well, folks, look at the evidence. If this were a case against LaKevis Tensley — I presented my evidence. We have no eyewitnesses that can identify him. The only thing linking LaKevis Tensley to this crime is LaKevis Tensley’s statement.
“If I present that to a jury, what is the crime that he’s just committed? The crime of aggravated batteiy. He goes in and he beats the guy up, renders him unconscious, then he runs out. Because he tells you I didn’t have any idea he was going to kill him, I thought we were going to beat him up. To be able to be guilty of murder, he would have to know what was going on. He would have to be linked to that murder. And I submit to you there would not be enough evidence to be able to be submitted for that to occur. Did I offer him or did the district attorney’s office offer him a plea? Yes. Wiry? Because sometimes you have to deal with the lesser of two evils to get to the end result.”
Jones failed to object to these remarks during the prosecutor’s closing arguments.
Jones argues the prosecutor argued two facts not in evidence, one of which was a misstatement of the law: (1) The State presented in Jones’ trial all the evidence that could have been used against Tensley; and (2) that Tensley could not have been convicted of first-degree murder based on his involvement in Trzok’s death.
The prosecutor was arguing to the jury how weak a potential first-degree murder case would be against Tensley. This was in response to the defense counsel’s extensive cross-examination of Tensley regarding his plea bargain. The prosecutor argued that the evidence presented at trial did not support first-degree murder. The defense counsel was free to take the opposite position. The trial evidence supports the prosecutor’s closing remarks.
(8) Pro Se Arguments
Ineffective Assistance of Counsel
Jones filed in this case his handwritten supplemental brief. In it, he argues his conviction should be overturned because his conviction violated his right to due process because his trial counsel pro vided ineffective assistance of counsel. In State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000), this court held that it may in some cases be appropriate for this court to consider an argument of ineffective assistance raised for the first time on appeal:
“As a general rule, we would not consider a defendant’s assertion of ineffective assistance of counsel before the trial court has had an opportunity to assess the performance of counsel. [Citation omitted.] However, such assessment by the trial court is not necessary where the record on appeal is sufficiently complete for this court to decide the issue in a direct appeal. Here, the acts of counsel that Carter relies on are not disputed and are clearly reflected in the record. It would serve no purpose to remand to resolve the issue. The record on appeal is sufficient for this court to consider Carter’s constitutional claims, including ineffective assistance of counsel.”
The record in this case reveals Jones filed a pro se motion to change counsel almost a year before the trial in this case. Jones alleged that his counsel, Arlene Pryor, was in violation of the Model Rules of Professional conduct. See Supreme Court Rule 226 (2001 Kan. Ct. R. Annot, 305). Jones alleged Piyor had failed to communicate with him and failed to file “several pre-trial motions to protect his interest.” At a hearing on June 9, 1999, the district court quizzed Jones on his complaint against his attorney:
“THE COURT: What’s your problem now? Tell me what’s — why you don’t want Miss Pryor to represent you anymore?
“MR. JONES: Because I feel that she’s not defending me the way she should have been. I don’t trust her, and it’s very hard to work with her, and I asked her to file motions for me. She refused to. I really don’t trust her.
“THE COURT: What motions did she refuse to file for you?
“MR. JONES: A motion to — a motion to — I want a separate trial from my co-defendant.
“THE COURT: Yeah, you got that. What else?
“MR. JONES: That’s it.
“THE COURT: Well, what do you mean she didn’t file — what else didn’t she file for you that you’re so smart about? Tell me this, about all this law you know about?
“MR. JONES: Well, I just don’t trust her.
“THE COURT: Well, I don’t care. Do you have some money to hire a lawyer? “MR. JONES: No.
“THE COURT: All right.
“MR. JONES: I’m asking you if the — I’m asking you out of the kindness of my heart, could you please get her off my case and assign me a lawyer?
“THE COURT: I’m not being land today. I want to know a good reason why you don’t want her on your case besides you don’t trust her. If you tell me why you don’t trust her and convince me of that, I’ll give you another lawyer.
“MR. JONES: She tell me — she come .up and visit me a day before court day, and my mom’s out of town, and my family, I don’t have the time to write them so they can come to my court day, only thing—
“THE COURT: You tell me why you want a new lawyer. Don’t give me a bunch of this baloney. You’re in serious trouble, mister. You’re facing 40 years of hard time in the penitentiary. Cut out the crud here and tell me why you don’t trust her and why you don’t think she’s a good lawyer.”
The court advised Jones to cooperate with Piyor, believing her to be one of the best he could appoint for him. The court denied the motion for a new attorney. It is clear from the above quotations that the court had faith in the representation Pryor was providing Jones. Further, it is clear from the court’s frustration that it believed Jones was failing to cooperate with Piyor and that his failure was the cause of any problems with his defense. Jones offers nothing to indicate the court was in error on these points; thus, the court did not err in failing to appoint Jones new counsel. Moreover, the record demonstrates that Jones was well represented throughout all proceedings before the trial court. His claim of ineffective assistance of counsel fails.
Other Arguments
It is difficult to clarify specific arguments made by Jones in his pro se brief. Most of his supplemental brief is a random discussion of various Kansas and federal cases. Not only is his supplemental brief lacking in citations to the record, but the brief is also mostly devoid of specific references to matters that could potentially be found in the record. As best as we could determine, Jones malees the following arguments: (1) The trial court erred in sustaining the State’s objection to his cross-examination of Fields; (2) the prosecutor committed misconduct by (a) referring to the State’s DNA lab, (b) explaining why she offered Tensley the plea bargain, (c) comparing Dr. Stetler to a prostitute, (d) arguing the jury did not need all the pieces to the puzzle to see the whole picture, (e) making gestures and other actions to discredit Jones’ expert witness, and (f) engaging “in a conspiracy [with Piyor] to deny [Jones] his constitutionally protected rights”; (3) the State delayed the disclosure of the DNA results; (4) the prosecutor failed to disclose “certain types of evidence”; and (5) the trial judge committed “judicial misconduct by making prejudicial comments about Jones;”
These arguments can be collectively disposed of as they fall into certain categories. First, some of the arguments overlap with Jones’ appellate counsel’s argument. Jones’ arguments of prosecutorial misconduct regarding the DNA lab, the plea bargain, and Dr. Stetler were all resolved in our above discussion.
Some of the arguments are raised for the first time on appeal. An argument not presented to the trial court will not be considered for the first time on appeal. State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). For example, Jones’ claim of judicial misconduct and the failure to disclose evidence are raised here for the first time. Further, to the extent Jones’ argument relates to the delay caused by the DNA evidence, it is clear Jones presented in his case in chief an expert, Dr. Stetler, who had reviewed the State’s DNA evidence. Dr. Stetler was able, to the best of his ability, to call into question the reliability of the State’s evidence.
Some of the arguments are devoid of merit. Falling into this category are the conspiracy between the prosecutor and his counsel and his argument that the prosecutor committed misconduct by arguing that the jury did not need all the pieces of the puzzle to see the whole picture.
Regarding the gestures, the record reveals the following occurred out of the hearing of the jury during Dr. Stetler’s direct examination;
“MS. PRYOR: Would there be any way that counsel [the prosecutor] could stop shaking her head?
“THE COURT: Don’t shake your head back and forth.
“MS. MOREHEAD [prosecutor]: I wasn’t “MS. PRYOR: You were. I saw you.
“MS. MOREHEAD: I was looking over to the--
“THE COURT: I understand you disagree with what they are saying and you are shaking your head. Don’t do that.”
The record does not reveal the prosecutor’s gestures generated any further attention. The above actions did not deny Jones a fair trial.
Jones’ argument that the court improperly sustained the State’s objection to his cross-examination of Fields is without merit. The record reveals the following from Fields’ recross-examination:
“Q. Sir, isn’t it correct when you talked to the police you gave them a description of what this person looked like, right?
“A. Yes.
“MS. MOREHEAD: Judge, could we approach?
“THE COURT: I don’t think you need to approach. I believe it’s beyond redirect. She was just asking about the statement.
“MS PRYOR: Well, she was asking about identification issues, Judge.
“MS. MOREHEAD: Judge, I confined it.
“THE COURT: I believe it was confined to the two statements.
“MS. PRYOR: Okay.”
The decision to limit the scope of cross-examination is subject to abuse of discretion. See State v. Vargas, 260 Kan. 791, 798, 926 P.2d 223 (1996). Jones’ attorney failed to make any argument why the question was not beyond the scope of the redirect examination. A review of the State’s redirect examination of Fields does not reveal she asked any questions regarding a description. It cannot be said the court abused its discretion. These arguments raised by Jones in his pro se brief fail to provide any basis for relief.
Affirmed. | [
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The opinion of the court was delivered by
Six, J.:
Leroy Dean was convicted by a jury of one count of forgery. K.S.A. 2001 Supp. 21-3710(a)(2). Because he was on post-release supervision at the time of this crime, Dean was sentenced to 14 months’ incarceration. See K.S.A. 2001 Supp. 21-4603d(a)(l). He appeals his conviction and sentence.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
The issues are whether: (1) the district court erred in finding that under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the State did not use a peremptory strike for a discriminatory purpose; (2) the evidence was sufficient to support Dean’s conviction; and (3) Dean’s constitutional rights were violated under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when he received a prison sentence, rather than probation.
Finding no error, we affirm.
FACTS
Hershel Ritchie and Leroy Dean were incarcerated at the El Dorado Correctional Facility. Both men were scheduled to leave on the same day. During the release process, the inmates’ personal items were returned and their prison bank accounts were closed. Ritchie, who was 76 years old, had trouble hearing. The prison staff handling his bank transaction spoke loudly to him. Dean was close by. After closing his bank account, Ritchie held a check for $900 and $147 in cash.
Both Ritchie and Dean were returning to Wichita. They were transported to the El Dorado bus station in the same cab and rode the same bus to Wichita. Minutes after arriving at the bus station in Wichita, Ritchie called the police. He alleged that Dean had robbed him of his $900 check. Ritchie testified that after he left the bus and walked toward the Wichita Transit Center, Dean attempted to steal a package that Ritchie was carrying. When Dean noticed the check in Ritchie’s shirt pocket, Dean released the package and said, “No, that’s what I want.” Then, Dean pushed Ritchie down while taking the check and ran off in the direction of a bank.
When Dean arrived at home, he asked his mother for assistance in cashing the check. He told her that he won the check playing poker in prison. The check, made out to Hershel Ritchie, was purportedly endorsed with Ritchie’s signature, only the last name was first and the first name last. Dean’s mother endorsed the check at Intrust Bank, where she had an account. Dean was given the cash. Neither Horn nor the bank teller saw Dean endorse the check. Dean was charged with one count of robbery and one count of forgery.
The jury acquitted Dean of the robbeiy charge. At sentencing, the State requested that Dean receive 14 months’ incarceration because he was on postrelease supervision at the time he committed this crime. The sentencing court imposed 14 months’ incarceration.
DISCUSSION
The Batson Issue'
Dean contends that the State impermissibly used a peremptory challenge to keep an African-American off his jury. The State used one peremptory challenge to remove D.W., one of two African-Americans from the jury. Dean’s counsel lodged a Batson objection. The State gave its reason for striking D.W. The district court accepted the State’s reason as racially neutral. Dean now takes issue with the State’s explanation of the strike.
Our standard of review is whether the district court abused its discretion in determining if the challenged strike was constitutionally permissible. State v. Vargas, 260 Kan. 791, Syl. ¶ 1, 926 P.2d 223 (1996). We review the district court’s findings with deference. State v. Conley, 270 Kan. 18, 25, 11 P.3d 1147 (2000).
We focus on the State’s explanation for striking the challenged juror. Dean and two venirepersons, P.O. and D.W., were African-American. According to Dean’s counsel, D.W. and Dean appeared to be close in age. When asked to explain his strike of D.W., the prosecutor said:
‘Tour Honor, there [were] numerous times during the jury selection when the defendant and [D.W.] made eye contact. I don’t know the reasoning for the eye contact, but I did not — I can’t say that the defendant made eye contact with other jurors, only with [D.W.], which caused me concern. I would note that there are other African Americans that were left on the jury. ... <
“I do agree with the statement that his questions were neutral, that it is the eye contact between the defendant and [D.W.] that caused me concern.”
Over Dean’s objection, the district court ruled that the State’s basis was race-neutral. The district court also noted a lack of dis criminatory pattern. Dean’s counsel argued that he and Dean sat with their backs to the jurors and he never saw Dean turn around.
An appellant has the burden of furnishing a record that affirmatively shows that prejudicial error occurred in the district court. Without such a record, we presume that the action of the district court was proper. State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997).
Dean essentially argues that the State’s explanation was a mere pretext for discrimination. He cites State v. Hood, 245 Kan. 367, 780 P.2d 160 (1989), to support his contention that we should be especially sensitive where “body language” is advanced as a reason for striking a juror of the defendant’s race. In Hood, the State exercised its peremptory challenges to strike the only two black jurors.
The State’s explanation in Hood for striking one of the black jurors included his “body language.” The juror sat with his arms across his chest and seemed to have “personal hostility” toward the prosecutor in his physical responses and tone of voice. 245 Kan. at 370. We noted that hostility toward the prosecution may be taken into consideration when the district judge determines whether the prosecutor has a valid and neutral reason for striking a juror. We added: “Again, however, the trial judge must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror of the defendant’s race.” 245 Kan. at 374. We found that the district court did not err in Hood by finding that the State had valid, neutral, and nondiscriminatoiy reasons for the exercise of its peremptory challenges. 245 Kan. at 376.
Dean argues that here, eye contact alone stood as the basis for the peremptory strike and that the strike implies that “two young black men would share a connection.” He observes that there was no indication that D.W. harbored hostility toward the State.
The State reasons that there was “improper communication” between D.W. and Dean. The prosecutor was concerned about the numerous times Dean allegedly made eye contact with D.W., whereas he did not make eye contact with the other jurors. The record reflects that before the State made its peremptory strike, it told Dean’s counsel that Dean was looking at the juror.
Other jurisdictions have upheld peremptory strikes based upon counsel’s intuition. See Polk v. Dixie Ins. Co., 972 F.2d 83, 86 (5th Cir. 1992) (accepting eye contact, or lack thereof, as legitimate rationale); Palmer v. State, 654 N.E.2d 844, 847 (Ind. App. 1995) (noting that prosecutor’s reason may be based on juror’s “bare looks and gestures”); State v. Jones, 123 N.M. 73, 74-75, 934 P.2d 267 (1997) (accepting prosecutor’s explanation of lack of eye contact and lack of assertiveness).
We also note that P.O. served on the jury. The State chose not to exercise a challenge to strike P.O., although he was familiar with the crime scene. A factor to be considered in determining whether strikes are discriminatory is the presence of other members of the same minority on the jury and the failure of the State to remove such members when given the opportunity. State v. Kingsley, 252 Kan. 761, 778-79, 851 P.2d 370 (1993). The race-neutral reason given by the prosecutor for striking D.W. is facially reasonable. See State v. Betts, 272 Kan. 369, 396-97, 33 P.3d 575 (2001). The district court did not abuse its discretion.
Sufficiency of the Evidence
Next, Dean argues that his conviction was not supported by sufficient evidence. Our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). If the essential elements of the charges are supported by any competent evidence, the convictions must stand. State v. Adams, 269 Kan. 681, 684, 8 P.3d 724 (2000). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Wimbley, 271 Kan. 843, Syl. ¶ 2, 26 P.3d 657 (2001).
K.S.A. 2001 Supp. 21-3710 provides, in pertinent part:
“(a) Forgery is knowingly and with intent to defraud:
(1) Making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority;
(2) issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed.”
Dean was charged with violating subsection (2). Ritchie testified that he did not endorse the check and denied giving anyone, including Dean, permission to endorse the check. According to Ritchie, the name on the back of the check was not written in his handwriting.
Dean argues that there was no evidence that the signature on the back of the check did not match Ritchie’s handwriting, nor was evidence offered to show that the signature did match Dean’s handwriting. Repeatedly arguing that Ritchie, lacked credibility, Dean notes that the only evidence about who endorsed the check came from Ritchie, the alleged victim. We do not reweigh the testimony or pass on the credibility of witnesses. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997).
The record shows that Dean saw the check in Ritchie’s shirt pocket. Ritchie and Dean were together at the bus station when the check was stolen from Ritchie. Ritchie last saw Dean running off in the direction of a bank. When the police arrived at the scene, Ritchie appeared visibly shaken and had trouble breathing. EMS workers gave him oxygen. Dean told his mother that he won the check while playing poker in prison. According to Ritchie, the signature was not his. Also, Dean and his mother cashed the check at a bank shortly after it was taken from Ritchie. There was sufficient evidence, when viewed in a light most favorable to the State, to convince us that a rational factfinder could have found Dean guilty of forgery beyond a reasonable doubt.
The Apprendi Issue
Finally, Dean argues that under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), his constitutional rights were violated when the district court imposed a prison sentence rather than presumptive probation. We disagree.
The State objects because Dean’s constitutional claim was not presented to the district court. Generally, “[w]hen constitutional grounds are asserted for the first time on appeal, they are not properly before [this court] for review.” State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), we recognized exceptions to the general rule. We recently relied on the Pierce exceptions in order to address an Apprendi argument raised for the first time on appeal in State v. Gould, 271 Kan. 394, 404-05, 23 P.3d 801 (2001). We follow our reasoning in Gould and consider the sentencing issue here.
Apprendi held: “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 proven beyond a reasonable doubt.” 530 U.S. at 490. Further, “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” 530 U.S. at 494.
Dean committed the forgery offense while on postrelease supervision. Under K.S.A. 2001 Supp. 21-4603d(f), the district court was authorized to impose incarceration for the new felony offense rather than presumptive probation:
“When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” (Emphasis added.)
A “departure” is a sentence which is inconsistent with the presumptive sentence. K.S.A. 21-4703(f). Because Dean’s K.S.A. 2001 Supp. 21-4603d(f) prison sentence is not considered a departure, it is a presumptive sentence. As such, Dean’s prison sentence does not exceed the statutory maximum punishment for his crime, and Apprendi does not apply.
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The opinion of the court was delivered by
Lockett, J.:
Defendant was convicted of first-degree murder, rape, and aggravated criminal sodomy. Defendant was sentenced to life in prison without eligibility for parole for 40 years for murder, 194 months for rape, and 146 months for sodomy. The rape and sodomy counts were run consecutive to the murder count. Defendant appeals, claiming (1) prosecutorial misconduct in the closing argument; (2) the trial court erred in admitting testimony of the victim’s mother; and (3) the trial court erred in admitting the defendant’s confession.
At approximately 10:50 a.m. on April 26, 1998, Lenexa police were dispatched to the Howard Johnson’s motel in response to a call concerning a possible murder. In one of the guest rooms, the body of a nude white female was found in the bathtub lying on her back. The woman was identified as Claire Marie Monti. The officer noted a number of bruises on the woman’s arms, chest, and legs, and a distinctive red mark under her left breast. There appeared to be pooling of blood in her lower extremities. A liquid, later determined to be shampoo, covered the woman’s body. The bedspread from the motel’s bed was missing. Officers checked nearby dumpsters for evidence.
A forensic neuropathologist examined the body before it was moved. Lividity was present. Abrasions and contusions were noted. The neuropathologist determined that Monti had been dead for a number of hours.
The following day, an autopsy was conducted. The coroner found 18 abrasions, 19 contusions, and 4 subgaleal hemorrhages (bleeding between the scalp and skull), and determined that there were probably four distinct blows to the head. All the abrasions were about the same age and had been inflicted shortly before death. Many of the abrasions had a faint woven pattern resulting from blows inflicted through cloth, such as clothing. One abrasion appeared to have resulted from the forward edge of a heel, suggesting that Monti had been stomped.
An internal examination of the body revealed a laceration to the liver, which was associated with approximately 50 milliliters of blood in the abdomen. Considerable force was necessary to lacerate the liver. All the injuries had been inflicted 4 to 6 hours prior to death and would have been painful.
The examination further revealed a significant amount of petechial hemorrhaging, which is consistent with a struggle. There was bruising in the muscles of the neck, indicating constriction of the neck by hands or a rope. The coroner observed asphyxial injuries to the exterior of the body, indicating strangulation. Petechial hemorrhages were concentrated over the eyes and forehead. There were scleral hemorrhages in both eyes.
The coroner also noted indications of sexual activity. There were three separate lacerations near the anus, suggesting anal penetration. All of the injuries were pre-mortem.
The forensic DNA analyst with the Johnson County Crime Laboratory collected swabs at the autopsy. The swab collected from the deceased’s thigh contained semen. There was also semen on a towel recovered from the floor of the motel room.
John Applebury, a contractor in the remodeling business, employed Rodney Henry, and Henry’s friend, Carl Dean Rails. Rails, who was lead carpenter/supervisor, had worked for Applebury for slightly more than 1 year. Henry had started working for Applebury as an assistant carpenter in February 1998.
On Monday, April 27, 1998, Rails paged Applebury, requesting an immediate return call. When Applebury returned the call, Rails told Applebury that he and Henry needed to talk to him because “something crazy had happened.” Applebury told Rails to come his job site in Kansas City, Missouri, and they would discuss the problem.
When Rails and Henry arrived, they informed Applebury that they had murdered someone. Although Rails assumed the lead in telling Applebury the story, both men contributed to the conversation. They stated that they met a woman who was parked on the street. The woman indicated that she wanted to be with them, so they followed her in separate cars to her motel. Along the way, when Rails was pulled over by the police, Henry and the woman stopped their cars to wait for Rails. After the traffic stop, the three of them continued to the woman’s motel room.
The men told Applebury that in the motel room the woman wanted to have sex with them, but “went stupid on [them].” Henry stated he helped Rails get control of the woman by pulling her arm behind her. Henry believed that he broke the woman’s arm in the process. Rails stated to Applebury that he knew he had to kill the woman because the incident had escalated to where he was guilty of rape and battery, and at that point, he had no choice.
After the woman was killed, Rails and Henry cleaned up the room, removed the curtains, sheets, ashtrays, and everything else that might have fingerprints. They bundled the items in a bedspread, and later placed the bundle in a dumpster and lit a fire.
Henry wanted to cut up the woman’s body and remove it in pieces from the motel room. Rails, who was worried that they would be observed taking the body out, suggested that, if discovered, they kill any witnesses. The men told Applebury that they had decided to leave the woman’s body in the bathtub filled with water. At that point, Applebury told the men he did not want to hear any more about the murder.
The men had informed Applebury about the murder because if they became suspects, the police might contact their employer to locate them. They requested that Applebury give them an early warning if the police came looking for them. Applebury asked the men if they thought they could live with what they had done. Both replied they could live with it. Applebury later called the TIPS Hotline from a public telephone. Applebury stated what he had been told and provided the police with the names and social security numbers of Rails and Hemy.
After Hemy was arrested, detectives interviewed him. Henry confessed to the murder. The interview was videotaped, and the tape was played to the jury at trial. On the videotape, Henry described meeting a woman from out of town in Westport. After the woman had drinks with Hemy and Rails, they went to the woman’s motel room. When the woman refused Rails’ sexual advances, Rails “just lost it” and began hitting the woman. Rails attacked the woman on the floor, putting his hands around her throat and starting to choke her. She pleaded with him to stop and agreed to do anything Rails wanted. Rails said that it was too late and kept choking her.
When the woman began scratching Rails’ face, Rails looked to Henry for help. Henry grabbed the woman’s right arm and pulled it behind her back. The woman stopped moving and went limp. Rails kept squeezing the woman’s neck. When Rails’ hands began to tire and hurt, he asked Henry to get a towel. Henry got a towel and gave it to Rails. Rails wrapped the towel around the woman’s neck and twisted it. Rails kept looking at the woman asking, “Are you dead, bitch?” Rails then ripped off the woman’s clothes and began molesting her. After molesting the woman, Rails stepped on her chest, tried to rip her nipples off, kicked her in the chest, and then shoved a towel into her anus.
After the woman had died, the two men threw her body in the bathtub. Henry turned on the hot water. Rails laughed, grabbed shampoo, and poured it over the woman’s body. Rails and Hemy then wiped down everything in the room, left, and drove to a warehouse where they placed the woman’s clothing and bed articles in a dumpster. They then lit the contents of the dumpster on fire to destroy the evidence.
Henry and Rails were charged and separately tried for the murder, rape, and sodomy of Monti. Hemy testified at his trial. He admitted his role in the murder, but defended by asserting that because of a mental defect, he had been incapable of forming the requisite intent for intentional murder.
Henry was convicted of the crimes charged and later sentenced. Henry appealed, asserting that he was denied a fair trial because of the prosecutor’s improper comments in closing argument, the erroneous admission of testimony of Monti’s mother, and the erroneous admission of his confession to the police.
Admitting Defendant’s Confession
In Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994), the United States Supreme Court set out the circumstances for law enforcement to consider in determining whether a suspect has invoked or waived Miranda rights during questioning.
“The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it requirfes] the special protection of the knowing and intelligent waiver standard.’ Edwards v. Arizona, 451 U.S. [477] at 483 [(1981)]. See Oregon v. Bradshaw, 462 U.S. 1039, 1046-1047 (1983) (plurality opinion); id., at 1051(Powell, J., concurring in judgment). If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U.S. 369, 372-376 (1979). But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been • made available or the suspect himself reinitiates conversation. Edwards v. Arizona, supra, at 484-485. This ‘second layer of prophylaxis for the Miranda right to counsel,’ McNeil v. Wisconsin, 501 U.S. 171, 176 (1991), is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,’ Michigan v. Harvey, 494 U.S. 344, 350 (1990). To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988). ‘It remains clear, however, that this prohibition on further questioning — like other aspects of Miranda — is not itself required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.’ Connecticut v. Barrett, supra, 479 U.S.[523], at 528 [(1987)].” 512 U.S. at 458.
The trial court conducted a hearing on the defendant’s motion to suppress the videotaped confession made to officers investigating the murder of Monti and ruled:
“Prior to the evidentiary hearing on the Defendant’s motion to suppress, State’s Exhibit 1 which is the videotaped statement was delivered to me, and I watched it completely, and I can tell you that I watched over and over again the portions from the time log on the tape from 215750 to 223810, and that encompasses just about everything we’re arguing about here with the exception that at the commencement of the interview, Miranda Warnings were presented to the Defendant and a waiver was made at that time. Specifically at 215750, the Defendant asked to review the written waiver of Miranda, and makes the comment, ‘So this means I can’t talk to a lawyer’ which one of the detectives says is not the case, and at 220320, Defendant states, ‘I want to talk to a lawyer.’ The tape, of course, speaks for itself, but in my view and my findings are that at that point, detectives terminated the interview, and the Defendant made the following remark. ‘All right, guys. Wait a minute.’ And shortly thereafter, ‘Can I make a call to my girl and then we’ll resume this?’ At 221050, the Defendant indicates that he wants to talk to you again. At 221210, the following — or 221210 Defendant states, ‘Do I need to talk to a lawyer? Do I neéd to have a lawyer say something to you? If I want to talk to a lawyer, is there one here?’ Based on the more involved, of course, exchange that’s presented on the tape, I think each of those three statements constitutes, at best, an ambiguous request. In fact, they might not constitute a request at all. But I think under the Ninci case, they are, at best, an ambiguous request for counsel. There are following several exchanges about whether the Defendant can go home if he talks, and then at 223810, Defendant states he wants to tell the whole story, and essentially proceeds to give a lengthy detailed version of events which took place.
“I’m sure Defense counsel is correct that at some point in time here, Defendant is in custody. I don’t think I need to make a finding as precisely when that occurred because my factual finding is that the Defendant made only one unambiguous request for counsel which is the one at 220320 on the tape, and then almost immediately withdrew that request and reinitiated the interview with the detectives, and that despite lengthy exchanges before he recommenced that statement, all of which are contained in Exhibit 1,1 do not find that any further unambiguous request for counsel was made. Therefore, the Defendant’s motion to suppress any of that statement is denied.”
Our standard of review is as follows:
“When reviewing a trial court’s decision as to suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court, but the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination.” State v. Shively, 268 Kan. 589, Syl. ¶ 1, 999 P.2d 259 (2000).
See State v. Ninci, 262 Kan. 21, 44, 936 P.2d 1364 (1997); State v. Longbine, 257 Kan. 713, 717, 896 P.2d 367 (1995).
Henry contends that the portion of his statement taken after his first invocation of his right to counsel should have been suppressed because the subsequent conversation included statements of the officers that were “tantamount to” or the “functional equivalent of’ conducting an interrogation in violation of his right to counsel.
At the suppression hearing, a detective who conducted the interview testified regarding Henry’s first request for an attorney. The detective was asked:
"Q. And Detective Olney left the room to go retrieve [the waiver of Miranda Henry had signed at the inception of the interview]. At 10 p.m. Detective Olney came back in and at 10:02 p.m. Mr. Henry asked ‘Since I signed this form does that mean I can’t talk to a lawyer?’ Did you answer the question?
“A. Yes, we did.
“Q. What did you tell him?
“A. I said, ‘No. That’s not what that means at all. What’s on that paper is your rights.’
“Q. Did he say something after that then?
“A. Yes, he did. He said, 1 want to talk to a lawyer.’
“Q. Okay. Are you all trained as to what to do in an interview when a suspect says that?
“A. Yes.
“Q. What do you do?
“A. That’s when we would stop the interview.
“Q. And so what did you all do then when Mr. Henry said, T want to talk to a lawyer?’
“A. We both began to, or we stopped the interview. We were getting ready to get up and walk out. I had closed the book that I had which I was taking notes in.
“Q. Uh huh.
“A. I closed that. I was getting ready to stand up and with the intent of leaving the room. At that point Mr. Henry put his hand up and' said, “Wait a minute, guys.’ And then there was some conversation and both Detective Olney and I asked him are you saying that you want to continue to talk to us.
“Q. Did he respond to that question?
“A. Yes.
“Q. Did you take that to be a re-initiation of contact?
“A. Yes, I did.”
We have reviewed the pertinent parts of the videotaped interview. At first, Henry gave very little in the way of incriminating information. At approximately 11:58 p.m., Henry requested that the officers allow him to review the Miranda form he had signed at the beginning of the interview. One of the detectives left the room to obtain the form. While the detective was out of the room, the other detective talked to Henry about honor, courage, and commitment — marine values (Henry had served in the marines). When the detective returned with the form, he did not immediately give the form to Hemy, but instead began to review with Henry the facts they had already obtained. Whén Henry asked to see the form, the detective handed it to Henry. As Henry read, one of the detectives stated to Hemy that they would get the story from Rails if they were unable to obtain it from him.
After reading the Miranda form, Henry asked if by signing the waiver he had given up his right to talk to an attorney. The detectives told Henry that he had not given up the right to an attorney— that the form was just an explanation of his rights. Henry then stated that he wanted to talk to an attorney and the detectives began putting their notebooks away. One detective asked Henry for his attorney’s name. Henry said that he did not have an attorney and could not afford one.
The detectives immediately got up out of their chairs to leave. Henry stopped them, stating, “All right, guys, wait a minute.” A detective asked Henry, “What are you telling me, we’ve got rules; we have to abide by what you said; it’s up to you; we won’t try to sway you.” Hemy said, “Can I make a phone call?” The detectives said that Henry could make the call, and asked, “Then do you want to come back and talk to us?” Henry said, “I just wanna make the call.” The detectives then asked Henry to tell them what he wanted to do after the call. Henry said, “I want to call, then we can come back in here.” The detectives said, “If you want to talk to us, you have to tell us.” Henry then made a telephone call to his girlfriend. He could be overheard saying into the telephone, “I can go home, but I’m not going to, I’m staying here. I’ll explain when I get home.”
When the detectives and Hemy returned to the interview room, a detective asked, “Do you want to talk?” Hemy said, “Yes” and asked whether he needed an attorney. The detectives explained that they were not at liberty to give him that kind of advice. After that point, there is a considerable length of time where the detectives tried to persuade Henry to tell his story, but Hemy was reticent and remained silent for much of the time. The detectives informed Henry that they wanted to listen, but that there were rules they had to follow about questioning and they had to be sure that he wanted to talk. Henry agreed to talk, but stated that he would have to back up in the story and straighten out a few points. Henry then proceeded to confess to his role in the killing of Monti.
When Henry made an unambiguous request for an attorney, the officers immediately responded to it by terminating the questioning. Henry then stopped the detectives from leaving the room, asking them to wait. Henry was very clear that after he made a telephone call, he would be willing to talk further with the detectives. After making the call, Henry reconsidered his decision to resume the interview. It is the period after the phone call and before the confession that Henry claims was the functional equivalent of an interrogation that violated his right to counsel. We note that although Henry was at times reticent, the officers did not coerce or coax Henry to confess. We conclude that under the circumstances, Henry unequivocally withdrew his request for counsel before questioning resumed and there was no violation of the defendant’s right to counsel.
Prosecutor’s Closing Argument
The insanity and diminished capacity defenses had been abolished by the legislature at the time of Henry’s crimes. See State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000). After January 1, 1996, a defendant might claim a mental disease or defect as a defense if it was such that it negated the mens rea element of the crime. K.S.A. 22-3220 states:
“It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense.”
Henry, who had confessed to killing the victim, raised this defense at trial.
Defense witness Dr. Douglas Hippe testified that Henry suffered from a mental disease or defect that impaired his ability to form criminal intent. Hippe testified:
“It appears from all of the records available and the testing, as well as the extensive diagnostic interviewing that Mr. Henry experiences a Chronic Posttraumatic Stress Disorder with respect to early childhood and adolescent experiences with verbal and physical abuse, as well as psychological and emotional abuse and . . . sexual abuse. This was compounded by extensive sexual abuse in adolescence, and left him with severe depression, low self-esteem, low self-worth, sensitivity to rejection, abandonment and a significant problem with alcohol, multiple other difficulties which included relationships and so on. Mr. Henxy was very — was verbal and coherent at the time of the incident and the intensity of his affect during the period was veiy strong, which in some ways may seem appropriate to the situation which it was. It was no evidence of formal thought disorder either as to form or content at that time. There was no indication of thoughts in advance of the crime nor preparation. It appears as indicated that due to his — I’ll use abbreviation PTSD and ASD symptoms — Mr. Henry was unable to substantially monitor control or change his behavior at the time of the incident. Mr. Henry was compromised by mental illness PTSD Chronic, the ASD, and the Dysthymia as well as to the extent that he lacked capacity to deliberate on his action, and in [a] rational manner, and could not premeditate his behavior nor form the intent in a rational state of mind. Mr. Plenry showed an impairment of judgment at that time by way of his inability to weigh accurately benefits or risks of the different alternatives as indicated. And this is — the substance of intent is that in order to form intent, there have to be choices available, and you have to make those choices. And as I said, he was unable to weigh accurately benefits or risks of different alternatives as indicated. Thus, there’s substantial interference with capacity to formulate or even recognize problems and then follow through on making appropriate decision. As a result, he was incapable of forming intent to the requirements of the law due to the indicated factors. The latter factors are not related to personality characteristics, but are rather psychological and emotional deficits. These are symptoms of PTSD and ASD and Dysthymia. Impaired ability to make choices from these options that were available in his environment. These resulted in disruption of his ability to integrate consciousness, identity, and memory.”
The jury was instructed concerning evidence of mental disease or defect as it relates to the issue of whether Henry was able to form the necessary mental state for each offense charged. Instruction No. 9 provided:
“Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime(s). Such evidence is to be consid ered only in determining whether the defendant had the state of mind required to commit the crime(s). You are instructed the defendant is not criminally responsible for his acts if because of mental disease or defect the defendant lacked the premeditation required to commit first degree murder, or the necessary intent to commit the crimes of first degree murder, second degree murder or voluntary manslaughter, or the necessary intent to aid and abet another in committing or attempting to commit any of the crimes charged.”
Instruction No. 10 provided:
“If you find the defendant not guilty solely because the defendant, at the time of the alleged crime(s), was suffering from a mental disease or defect which rendered the defendant incapable of premeditation or possessing the required criminal intent, then the defendant is committed to the State Security Hospital for safe-keeping and treatment until discharged according to law.”
In closing argument, the prosecutor reviewed Instruction No. 9 with the jury. The prosecutor read, the instruction and then commented:
“It’s sort of hard to understand. It’s kind of complicated, isn’t it? What that means when you boil it all out is find him not responsible because of mental disease or defect, you’ve got to be able to find he was so out of it that he didn’t know that was a lady getting choked in the room; that he didn’t help Carl Dean Rails at all; that he didn’t grab her arm to keep her from scratching him; that he didn’t go into that room with any sexual intent; that he didn’t beat her; that he didn’t help beat her; that he didn’t watch out for Carl Dean Rails while he beat her; that he didn’t get that towel for Carl Dean Rails because his hands were getting tired. You got to find all that is out of the picture, and we know that’s not the case. He told us. He told us he did that. Now, he wants to get up here and mealy-mouth and whine and cry about how he’s not responsible for it because he’s had a hard life. That isn’t what gets it.”
The prosecutor s argument was an emotional misstatement of the law. A misstatement of the law, whether by prosecutor or by the court, denies the defendant a fair trial where the facts are such that the jury could have been confused or misled by the misstatement. See State v. Moncla, 262 Kan. 58, 69-70, 936 P.2d 727 (1997). According to the prosecutor, the jury had to find that Henry did not commit the alleged acts in order to find him not guilty by reason of mental disease or defect.
There was no objection to this portion of the prosecutor s closing argument. Generally, reversible error cannot be based upon mis conduct by the prosecutor during closing argument where no contemporaneous objection is lodged. State v. Finley, 268 Kan. 557, 571, 998 P.2d 95 (2000). However, if the prosecutor s statements violate a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. 268 Kan. at 571.
If there was an objection or an alleged due process violation, appellate review of the effect of a prosecutor’s improper remarks in closing argument is required. Such review involves a two-step process: (1) Were the remarks outside the considerable latitude the prosecutor is allowed in discussing the evidence; and (2) were the remarks so gross and flagrant as to prejudice the juiy against the defendant and to deny the defendant a fair trial? 268 Kan. at 571-72.
We note that Henry admitted that he committed the acts, but claimed he was unable to form the requisite mental state for criminal responsibility due to his dependence on Rails and other factors set out in Dr. Hippe’s testimony. Henry contends that the prosecutor’s misstatement of the law denied him a fair trial because it confused the complicated issue of mental disease or defect as it related to his criminal intent and improperly shifted the burden of proof from the State to the defendant. The State does not address Henry’s contention in its brief.
Here, the prosecutor’s misstatement of the law must be considered in the context of the jury instructions given by the trial court. The instructions to the jury as to a mental defect or disease were correct statements of the law. Whether the trial court’s jury instruction was sufficient to remove any confusion resulting from the prosecutor’s clearly erroneous statement regarding the defense of mental disease or defect must be considered with the other issues of alleged prosecutorial misconduct.
Henry next contends that in his closing argument the prosecutor misrepresented the evidence and exaggerated the time that Monti suffered at the hands of her attackers. The jury was instructed in Instruction No. 6: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
The prosecutor had stated that the reason Heniy lied about the events that night was
“[b]ecause the truth is too sickening. How do you go say to the cops or say to the jury, “Yeah, we were going to have her that night. . . . We got back up there and she wasn’t having none of it so things got a little bit rough?’ Things got a little bit rough 12:30 to 3 a.m. Think about that. That tape you watched was three hours long. They had her in that room for almost the length of that tape? What do you think happens? Do you think it happens like he says where 2 or 3 minutes, kissing and bam, he chokes her to death, and they spend 10 minutes cleaning up and out of there? No. About twice as long as an average full length movie they got her in that room. When you think about feeling sorry for this guy, you think about how Claire Marie Monti died. You think about Mother’s Day yesterday, and her mom how she must have felt. Now Claire Marie Monti will never have a chance to be a mother, this young professional sharp, security conscious woman . . . .”
Henry details the time period of Monti’s ordeal and concludes that the prosecutor exaggerated when stating that Monti suffered 3 hours because the actual maximum time that lapsed from the time the men entered Monti’s room until Monti died was less than 2 hours.
The evidence was that Monti returned to her motel room at 12:30 a.m. The dumpster fire which contained Monti’s clothing and the room bedding was reported at about 3 a.m. Although the prosecutor misrepresented the time of Monti’s ordeal, the prosecutor’s comments were within the realm of fair comment on the evidence.
Henry also complains that the prosecutor called him a liar several times in closing argument. Dr. Handler had testified that Monti was alive when the injuries were inflicted. He observed no injuries that were inflicted after death; all the injuries were premortem. The prosecutor commented:
“We know in this case [Monti] was penetrated while alive. There’s no question about it. Two expert witnesses said no question about it to a degree of reasonable scientific certainty that the woman was alive when somebody stuck something up her anus and tore it. That makes this man a liar.”
“It couldn’t have happened how he says it happened. It’s impossible. It is absolutely impossible. If you believe the evidence in this case, if you believe Dr. Young, believe Dr. Handler, [Henry is] a liar. Just like I told you in opening, you know why he’s a liar? Because the truth is too sickening.”
The State argues that the prosecutor s references were to evidence that discredited Henry’s testimony, showing him to be untruthful and, therefore, were fair comments on the evidence rather than the prosecutor’s objectionable personal opinions as to the credibility of the defendant. To support its claim of fair argument, the State relies on our statements in State v. Pabst, 268 Kan. 501, 504-09, 996 P.2d 321 (2000), and State v. Campbell, 268 Kan. 529, 539-43, 997 P.2d 726, cert denied 531 U.S. 832 (2000).
In Pabst, the prosecutor called the defendant a liar approximately 11 times during closing argument, attempted to bolster the credibility of State’s witnesses, and attempted to alter the burden of proof. When evaluating the prosecutor’s conduct, the Pabst court noted that Kansas Rules of Professional Conduct Supreme Court Rule 226 (2001 Kan. Ct. R. Annot. 305) and the American Rar Association Standards of Criminal Justice, 1 ARA Standards for Criminal Justice, Standard 3-5.8 (3d ed. 1993), prohibit prosecutors from expressing their personal beliefs or opinions as to the truth or falsity of any testimony or evidence or the guilt of the defendant. The Pabst court stated that the prosecutor, by expressing his personal opinion on the defendant’s credibility and the credibility of the State’s evidence, had placed before the jury unsworn testimony that should not have been considered and concluded that under the circumstances, the prosecutor’s accusing the defendant of lying went beyond the traditional wide latitude afforded to prosecutors in closing argument. 268 Kan. at 506-07. The Pabst court then observed:
“Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. [The State argues if the testimony is not believable, a prosecutor may state to the jury that the witness is a “liar.” The State fails to note the next sentence concludes:] However, the ultimate conclusion as to any witnesses’ veracity rests solely with the jury.” 268 Kan. at 507. (Emphasis added.)
The State asserts that Pabst has been misinterpreted as standing for the proposition that it is always improper for a lawyer to comment on a witness’ credibility. See, e.g., State v. Hazley, 28 Kan. App. 2d 664, Syl. ¶ 1, 19 P.3d 800 (2001). We disagree with the State’s overly broad interpretation of Pabst which fails to note that the Pabst court stated: “The reason for prohibiting a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.” 268 Kan. at 510.
The State contends that Campbell accurately demonstrates that there are fair comments on a witness’ credibility based on witness testimony that is in contravention of unassailed evidence. In relying on our statements in Pabst and Campbell for support, the State disregards our statement in Campbell distinguishing the two cases. The Campbell court stated:
“We need not restate the law which is fully set forth in Pabst. The comments in this case do not rise to the level of those in Pabst. The comments were made without objection and fall under our contemporaneous objection rule. Furthermore, none of the comments about Malone, Bruce, or Ingram’s testimony could be characterized as ‘vouching’ for their credibility. All of the complained of remarks were within the considerable latitude allowed by counsel during closing argument and were not erroneous.” 268 Kan. at 541.
Testimony of the Victim’s Mother
Henry asserts that because he admitted he participated in killing Monti, the victim’s mother’s testimony was not relevant to the only issue at trial, i.e., his mental defect. He contends the testimony was offered by the prosecutor for the sole purpose of prejudicing the jury against his defense, and that admission of the testimony over defendant’s objection was an abuse of discretion. For support, Henry relies on State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998).
Relevant evidence is evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(b). When reviewing the mother’s testimony to determine if the testimony was relevant, it is important to note that Henry had confessed to the murder and a videotape of the confession had been played to the jury. Henry also testified at trial and admitted his role in the murder. Henry defended his acts by asserting that because of a mental defect he had been incapable of forming the requisite intent for intentional murder.
Normally, the admission or exclusion of evidence is measured by the harmless error rule. In determining if the erroneous admission of evidence is harmless, the court must consider if it is inconsistent with substantial justice, i.e., affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Donesay, 265 Kan. 60, Syl. ¶¶ 7, 8.
In Donesay, after damaging a previously stolen car, Donesay and a friend stole another car in Wichita. Even though they had broken into the steering column to start the car without keys, when they found'a set of keys in the glove compartment, they put them in the ignition so that the car would not look stolen. After noticing one of the car’s headlights was out, they decided they needed to get another car to avoid being stopped by police.
, After picking up some friends but before locating another car to steal,
“Donesay and his companions saw a sheriff s patrol car traveling in the opposite direction. Officer Kevin Easter advised the dispatcher that he had observed a vehicle run a stop sign and that the driver appeared to be trying to lose him. Officer Easter made a U-tum and turned on his overhead lights. He advised the dispatcher that he was in pursuit and provided a description of the car as well as locations. In trying to get away from the officer, Donesay missed a turn, lost control, went through a fence, and drove into a residential yard.
“When the car had come to a stop, Donesay reached under the seat to get the gun, jumped out of the car, and ran. Donesay later told police that he did not think Officer Easter saw that he had a gun and that Easter did not shoot at him or tell him to drop his gun. The officer chased Donesay and several times told him to stop. As Donesay was trying to vault over a fence, Easter grabbed his leg. Easter pulled Donesay off the fence and they both went down. Within a very short time, Easter put his fingers in Donesay’s mouth. With Donesay on his right side and Easter on top of him, Donesay put the gun over his shoulder and fired. Officer Bowker, who had arrived by then, heard two quick shots, a pause, and two more quick shots. Donesay testified that Easter “just faded away from me a litde bit and I had to push him off a little bit.” The defendant got up, saw Easter’s gun, and grabbed it. As Donesay was getting up, he saw someone with a flashlight come around the comer and heard a gunshot. When Donesay tried to run, he fell. After a police officer caught and handcuffed him, they found that Donesay had a gunshot wound in his leg, which he had accidentally inflicted himself.
“Officer Easter was shot at close range in the right forearm, right shoulder, back of the head, and the back of his neck. The bullet that entered the back of his neck traveled along his spinal column and through his right lung and liver, causing his death. Other injuries on his body included two small tears inside his lips, scrapes on his face, and a bite mark on his left leg.” 265 Kan. at 62-63.
Donesay acknowledged that he had killed the officer, claiming he shot, not to kill the officer, but to escape capture. Donesay argued that under these circumstances.he was not guilty of premeditated murder.
The wife of the murdered officer was called by the State as a witness. The defendant, who had stipulated that the pistol was the officer s weapon and that the officer was properly uniformed and who had no objection to the admission of a picture of the officer, objected, claiming that the widow’s testimony was not relevant and served only to inflame the passions of the jury.
The widow testified in detail as to her relationship with the slain officer from when the two first met in high school, their first date, and their relationship in college. She testified as to her husband’s goals and ambitions and how he had chosen a career in law enforcement and talked of eventually going to law school. She testified that her husband’s brother was also in law enforcement. She recalled the circumstances of becoming engaged , to be married, and she identified a photograph of the slain officer, evidently taken at their wedding.
The Donesay court, in a decision approximately 1 year prior to Henry’s trial, noted:
“K.S.A. 60-401(b) provides that ‘ “[rjelevant evidence” means evidence having any tendency in reason to prove any material fact.’ It is beyond clear that Mrs. Easter’s testimony was irrelevant, prejudicial, and inflammatory. Her testimony may have been proper at sentencing, but the State’s justification for her testimony at trial is meritless, to say the least.
“First, had Officer Easter lived, this would not be a case of premeditated murder, and second, had he lived, he could not have testified as did Mrs. Easter. Her testimony was obviously collateral to the charges against the defendant, and there needs to be some natural or logical connection between her testimony and the inference or result her testimony is designed to establish. See State v. Walker, 239 Kan. 635, 644, 722 P.2d 556 (1986). Clearly, Mrs. Easter’s testimony was not relevant to any material fact of the crimes charged. What is clear is that the inference or result intended was to improperly influence the jury and prejudice the defendant’s right to a fair trial. There is no question that the admission of Mrs. Easter’s testimony was error. This, however, does not end our inquiry.
“The question becomes whether the admission of testimony is reversible error. At oral argument, the State conceded it had no authority to support tire admission of such evidence, and its best argument was that it was harmless error.
“In State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969), we stated:
‘Our Kansas harmless-error rule has been incorporated in the statutory law of this state. (See K.S.A. 60-261 and K.S.A. 62-1718.) Our harmless-error rule applies unless the error is of such a nature as to appear inconsistent with substantial justice. Our courts are directed to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
‘The federal harmless-error rule declared in [Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967),] requires an additional determination by the court that such error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial.’
The court then proceeded to apply the double standard in finding ‘the error was harmless beyond a reasonable doubt and did not affect the substantial rights of the defendant.’ (Emphasis added.) 203 Kan. at 895.
“In State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995), this court noted K.S.A. 60-261 and the numerous cases applying the statutory test of whether the substantial rights of a party had been prejudiced. We further stated:
‘Although the standard of “harmless beyond a reasonable doubt” as applied to errors of a federal constitutional magnitude was recognized as more stringent than the one imposed by Kansas statutes, see State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969), in recent years a similar standard has been applied in Kansas to errors not couched as constitutional violations. See State v. Tyler, 251 Kan. 616, Syl. ¶ 7, 840 P.2d 413 (1992); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982).’ 258 Kan. at 445.
“Other courts have confronted this issue in similar contexts. In People v. Bernette, 30 Ill. 2d 359, 197 N.E.2d 436 (1964), as here, the defendant contended that testimony of the victim’s widow was irrelevant and highly prejudicial and the purpose was to ‘infuriate and inflame the jury against him.’ 30 Ill. 2d at 371. The testimony at issue related to the fact that the victim left a widow with four minor children. Her testimony did not approach tire extent and detail of Mrs. Easter’s testimony in the present case. The State conceded the testimony was irrelevant but argued that it was not reversible error because the defendant did not object and tlie objectionable evidence was ‘brought to die jury only incidentally.’ 30 Ill. 2d at 372. The court found odierwise:
‘The evidence in regard to the decedent’s child and step-children was not brought to the notice of the jury incidentally, but was presented by a series of questions in such a way as to permit the jury to understand that it was a matter material and proper to be proved. If any doubt existed, it was removed when the prosecutor went to the extreme of eliciting the ages of the children involved. This entire segment of the evidence, having no relevance to guilt or innocence, could only have had the purpose of prejudicing defendant in the eyes of the jury “and to arouse in them anger, hate and passion.” (People v. Dukes, 12 Ill. 2d 334, 340.) What part this inflammatory appeal to the jury played in the selection of the death penalty cannot be known. But defendant, no matter how reprehensible his crime, was entitled to have jurors consider both the matter of his guilt and punishment, uninfluenced by the circumstance that decedent’s widow had been left to live alone with children of tender ages as the result of the homicide.
‘And while no objection was made by the defense to the admission of such evidence, we believe, apart from considerations of a later claim that defendant’s counsel was incompetent for not objecting, that the irrelevancy and highly prejudicial nature of such evidence is so well established, that it was the duty of the court in a murder case to have refused it on its own motion (Cf. People v. Winchester, 352 Ill. 237; People v. Blevins, 251 Ill. 381; City of Chicago v. Pridmore, 12 Ill. 2d 447.) It is always the duty of a trial court to control proceedings to insure that an accused receives a fair and impartial trial.’ (Emphasis added.) 30 Ill. 2d at 372-73.
“In People v. Logan, 224 Ill. App. 3d 735, 586 N.E.2d 679 (1991), Bemette was discussed and applied:
‘The testimony in the present case went far beyond that presented in [People v. Yates, 98 Ill. 2d 502, 456 N.E.2d 1369 (1983),] and [People v. Free, 94 Ill. 2d 378, 447 N.E.2d 218 (1983)]. Here, as in Bemette, the deceased victim’s widow testified in response to a series of questions that she had three children, that the children were aged 10, 6, and 3, and that the eldest was not the child of the deceased. In addition, the prosecutor commented on both victims’ families in opening and closing argument and a photograph showing the deceased victim with his wife and children was admitted into evidence. It also should be noted that, unlike Bemette where no objection was made, here, the testimony concerning the victims’ families was admitted over defendant’s objections.
‘In the present case, the evidence and comments complained of were precisely the kind of detailed discussion of the deceased victim’s family that has been condemned by the supreme court. And unlike [People v. Caballero, 126 Ill. 2d 248, 533 N.E.2d 1089 (1989)], here, the evidence not only was uninvited, it was admitted over the strong objections of defendant. Moreover, in the present case, defendant challenged the sufficiency of the evidence against him in his original appeal and continues to do so in the present appeal.
“We find nothing in the supreme court’s language that requires us to conclude that introduction of evidence of a victim’s family will always constitute harmless error when the death penalty is not imposed. Rather, the court appears to be saying that when the death penalty is not imposed, the question of whether introduction of such evidence constitutes harmless error will depend upon the manner in which the evidence is introduced.
As noted above, the supreme court has ruled that the evidence in this case was not brought to the jury’s attention incidentally but was presented in a manner that permitted the jury to believe it was material. (Hope, 116 Ill. 2d at 278.) The court also found that the comments about the victims’ families made during opening and closing arguments were not invited by the defense and amounted to an improper appeal to the emotions of the jurors. Thus, the supreme court has already held that the manner in which the evidence was introduced served to prejudice the jury, and we find that the fact that the death penalty was not imposed does not require a different conclusion. See People v. Tajra, 58 Ill. App. 2d 479, 208 N.E.2d 9 (1965).’ 224 Ill. App. 3d at 741-43.
“In People v. Gallon, 121 Mich. App. 183, 328 N.W.2d 615 (1982), the court determined that the eliciting of the officer regarding the defendant’s asserting his right to remain silent was error. In response to the State’s argument that the error was harmless, the court stated:
‘The prosecutor also claims that the error was harmless. In determining whether error was harmless, we employ a dual inquiry. First, was the error so offensive to the maintenance of a sound judicial system as to require reversal and second, if not, was the error harmless beyond a reasonable doubt? People v. Swan, [56 Mich. App. 22,] pp. 31-32. The purpose of the first criterion is to deter prosecutorial and police misconduct. People v. Wright (On Remand), 99 Mich. App. 801, 810-811, 298 N.W.2d 857 (1980). An error may be intolerably offensive to the maintenance of a sound judicial system if it was deliberately injected into the proceedings by the prosecutor, if it deprives the defendant of a fundamental element of the adversary process, or if it is of a particularly inflammatory or persuasive land. People v. Swan, supra, p. 32. The purpose of the second criterion of the harmless error test is to safeguard the decisional process. Thus, if it is reasonably possible that in a trial free of the error complained of even one juror would have voted to acquit, the error was not harmless.’ 121 Mich. App. at 188-89.
“In the present case, we apply a similar dual test in determining if tire admission of Mrs. Easter’s testimony was harmless. State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995). 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 Mrs. Easter’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?
“Here, the district attorney not only had Mrs. Easter testify, but also in her opening statement, over defendant’s objection, told the jury in great detail what Mrs. Easter’s testimony would be. The testimony was patently irrelevant and de liberately presented for the obvious purpose of inflaming the jury against the defendant. As such, it affected the defendant’s right to a fair and impartial trial.
“As we previously discussed, the defendant offered to plead guilty to all charges except premeditated murder and aggravated robbery. The primary issue in the trial was whether the killing of Officer Easter was done with premeditation. The defendant did not deny he shot Officer Easter. There is no question of the defendant’s involvement in this tragic occurrence. His offer to plead guilty to four counts was opposed by the State. Notwithstanding, the State intentionally injected the irrelevant and highly prejudicial testimony of Mrs. Easter into this trial. Her testimony was not relevant to any of the charges, but it was offered and admitted by the court as if it were. The jury could not consider the evidence fairly and impartially as to any of the charges. However, the only real question was whether the killing of Officer Easter was premeditated. The defendant basically admitted to everything except that he premeditatedly killed Officer Easter. Defendant, in his brief, noted:
‘There was no independent substantial and uncontroverted evidence of Donesay’s premeditated intent to kill Easter. There were no witnesses. There was no medical evidence as to the order in which Easter received the bullet wounds, whether it was the first shot or last that killed him. Officer Bowker testified at trial he heard two shots, a short pause, and two more shots. He conceded, however, that he had not mentioned the pause in his initial report, and that in a subsequent police interview he described the shots as being fairly rapid. He did not tell anyone about the pause in the cadence of the shots until after he met with the prosecutor. . . .
‘There was no question the incident took place in a veiy short period of time. Donesay himself testified he did not intend to kill Easter. He testified he just got mad and shot Easter without thinking.’ ” 265 Kan. at 84-89.
The Donesay court concluded:
“The purpose of the State’s eliciting Mrs. Easter’s testimony was not to identify the defendant as the killer, was not to show that he intended to kill Officer Easter, and was not to show premeditation. Her testimony was not intended to show the guilt of the defendant, and it did not. We can only conclude that it was intended to infuriate and inflame the jury against the defendant. We cannot objectively conclude the admission of the testimony was harmless error. The district attorney’s insistence in presenting this testimony to the jury, and the trial court’s allowing her to do it, affected the substantial rights of the defendant to a fair and impartial trial. Thus, we have no choice but to reverse the defendant’s convictions.” 265 Kan. at 89.
We note that Donesay was retried, convicted, and sentenced for the same crimes. His conviction was affirmed on appeal. State v. Donesay, 270 Kan. 720, 19 P.3d 779 (2001).
In this case, defense counsel objected to the emotional impact of using the decedent’s mother to establish facts already in the record or available from other sources and tire relevance of the testimony. Henry asserts that the admission of the victim’s mother’s testimony regarding the victim, the victim’s character, and the victim’s family relationships was irrelevant. There was no issue of premeditated murder. Henry admitted the killing; however, he claimed he lacked the mental state to be convicted of the offense charged. Therefore, the admission of the mother’s testimony was irrelevant, patently improper, and reversible error.
The mother’s testimony covers approximately 20 pages of the trial transcript’s approximate 900 pages. When reviewing the mother’s testimony we must first determine if her testimony was relevant to Hemy’s mental state and, if relevant, whether the probative value of the evidence was outweighed by its prejudicial nature. Second, if the evidence was not relevant, we must determine whether the admission of the mother’s testimony was patently improper, such that it affected the defendant’s right to a fair trial.
The victim’s mother testified on direct examination as follows:
“Q. [Prosecutor Morrison] Would you state your name for us, please.
“A. Claire Monti.
“Q. Where do you live, ma’am?
“A. I live in Holland, Pennsylvania.
“Q. Where is that at?
“A. Just north of the city of Philadelphia north and east.
“Q. And is that the area where you’re from originally?
“A.. Yes. From Philadelphia.
“Q. Are you married?
“A. Yes.
“Q. What is your husband’s name?
“A. Victor.
“Q. How long have you been married to Victor?
“A. 34 years.
“Q. Do you have children?
“A. Yes.
“Q. How many?
“A. Three.
“Q. What are their names.
“A. Well, there were three. Claire Marie, Barbara, and Michelle.
“Q. Is Claire Marie, from your answer, deceased?
“A. Yes.
“Q. Hold old was she when she died?
“A. She was 32.
“Q. And how old are your other daughters?
“A. Now?
“Q. Yes.
“A. Barbara is 32 now. And Michelle will be 31. Barbara has a birthday in July. She’ll be 32 in July. And Michelle will be 31 September.
“Q. So Claire Marie was the oldest?
“A. She was the oldest. The first.
“Q. And so she would have been 33 today, I guess?
“A. Yes. Her birthday was April 17th.
“Q. Ms. Monti, did she go by ‘Claire’ or ‘Claire Marie?’ How did that work? “A. Since her college days, she preferred her friends and people outside to call her ‘Claire Marie’ to distinguish her from myself, and also because that was . her given name, so most of the people, yes, called her ‘Claire Marie.’
“Q. And describe her physically size wise.
“A. Very tiny. Claire was about five foot one and a half, under five foot two. Very slightly built. Veiy small frame. Much smaller than myself. I’m shorter than Claire, but I’m bigger in the body.
“Q. About what did she weigh?
“A. She weighed about 95 pounds.
“Q. And was she a college graduate?
“A. Yes, she was.
“Q. Where had she gone to college at?
“A. Went to college at Rider University in Lawrenceville, New Jersey.
“Q. And had she graduated?
“A. Yes.
"Q. What was her major or majors?
• “A. Her major — she had a double major. It was Finance and Accounting, and minor in Economics.
“Q. And was she a CPA?
“A. Yes. She was a Certified Public Accountant.
“Q. Did she have an advanced degree?
“A. Claire was working on her MBA. It was an independent study program, and she was also studying — she actually received, had just received her certificate as a Microsoft Certified Systems Engineer, so she was trying to fill out her background in computer hardware and software.
“Q. Ms. Monti, I’m going to show you this photograph before I forget, State’s Exhibit Number 1. Is that your daughter Claire Marie?
“A. Yes, it is.
“Q. Okay. You provided that photograph for us?
“A. Yes, we did.
“Q. How old — is that picture like a college picture or something?
“A. She essentially looked the same.
“Q. That was my next question. Had she changed much between that and the time of her death?
“A. No.
“Q. How did she do in college?
“A. She did very well in college. She was a top student. She graduated summa cum laude and very — in the most difficult major in the school at a very well known, prestigious school. Her grade point average was'3.9 out of 4.0 and, she was sixth in her class.
“Q. Did she — I don’t really know how to phrase this. I call it ‘neatnik.’ Was she a neatnik like type person?
“A. Very well organized. She liked to have everything well organized so, yeah. She preferred to have things in their place.
“Q. And let me take that a step further. Was she the kind of person that everything was in order and had to be in order, or kind of bugged her, or she more like me?
“A. Definitely got very upset if things were not.
“Q. Things weren’t going to be laying around her house?
“A. Not if she could help it.
“Q. Okay. Had she worked for any CPA firms?
“A. Yes, she did. She worked for two public accounting firms. While she was in school, she had an internship with Arthur Anderson Company, and they hired her when she graduated for a full time employee. She worked with them for about three years or so. Later on, she worked for Delloitte and Touche for another three years. So those two firms. When she graduated, she had offers from all of them.
“Q. Where was she working at the time of her death?
“A. At the time of her death, she was working in Yardley, Pennsylvania, for a company called Prophet 21.
“Q. What do they do?
“A. They actually design and market and sell speciality software packages for mostly to distributors, distributorships, and it’s the complete package to go from order entry inventory cash management, the whole bit.
“Q. How long had she worked for Prophet 21?
“A. About a year.
“Q. What’s a CPA do working for a junior company?
“A. This software package included also all of the accounting modules such as the general ledger modules, in addition to just simple billing, invoicing and cash management, so they hired her because of her expertise in accounting, and because she was also very knowledgeable about computers, and it was a real big boom to them to have a CPA on their staff because you can’t use — learn to use a software package properly in those modules, accounting modules unless you really know how to do accounting. So her expertise was that not only did she know their product and how it was to be used, but she could also help these people to use proper accounting procedures.
(The following was taken up at the bench with Court and counsel out of the hearing of the jury:)
“MR. GYLLENBORG [Defense Counsel]: Judge, I justwantto again protect the record and lodge an objection, and I want to couch it this way. Certainly I think the State has an opportunity to put the parents on and establish what kind of — the fact she was here and they didn’t hear from her again and things like that.
“This is different though obviously than a murder where a body is never found, and you have to establish regular pattern of behavior, and then that it’s seized. I guess I would ask for a proffer before things get too emotional. And I’ll be honest. I never tried a murder case. I don’t know what the limits are of what can be asked, and whether this woman is allowed to break down on the stand in front of the jury. I would submit if we get that far along, we’ve crossed over again into pretty prejudicial, unfairly prejudicial testimony that isn’t necessary that the jury hear in order to do their job. Am I making sure I’m clear on that objection? I don’t know what else we are going to talk about.
“MR. MORRISON: I’m not going to ask her anything — I’ll tie up with other evidence.
“MR. GYLLENBORG: If we start talking about what land of a daughter was she, a wonderful person, and this woman starts crying, we’re in trouble.
“MR. MORRISON: I don’t think she’s going to bréale down.
“MR. GYLLENBORG: That’s why I’m up here now.
“MR. MORRISON: I know there are limits how far you can go with that.
“MR. GYLLENBORG: I want to make sure we are all aware of my concerns so that we can go up to the line but not cross it because once that starts and I object, I look like an asshole in front of the juiy.
“MR. MORRISON: You already do. I’m not going to give her—
“MR. GYLLENBORG: I assume you’re overruling the objection, but we understand.
“THE COURT: I’m not sure exactly what you’re objecting to.
“MR. GYLLENBORG: My objection is to having her on the stand. Here is my objection. Relevance and materiality. In this particular case, there’s no relevance to what she’s saying. We know she was here. We know she got killed. We know what she did for a living. We already talked to the employer. There is my objection.
“THE COURT: Well—
“MR. GYLLENBORG: And it is a prejudicial issue.
“THE COURT: I don’t think there’s a pending question. It’s hard to rule on an objection that way. Hopefully we can move along. I do understand your concern. I guess if it’s an objection it’s already been asked, it’s overruled.
“MR. GYLLENBORG: Not so much the next question and pending question, but I guess I should have stood up, come up in the beginning. I’m not trying to look like an ogre and not let the State do their job and put mom on. I understand the limits Mr. Morrison restricts himself to.
(The proceedings continued in the hearing of the jury.)
“Q. (By Mr. Morrison) Ms. Monti, one thing I want to touch on is about this issue of organization and what I call rightly or wrongly kind of being a neatnik. You indicated that she was in order — excuse me — keeping things orderly, so on, so forth. She was into that a lot, is that correct?
“A. Yeah. She liked to keep things in order. She liked things that were well planned also.
“Q. So that’s sort of, for want of a better word, like CPA mentality, what we think about people that are in that business?
“A. Right. You have to be detail oriented and you have to make sure that everything goes in the right spots.
“Q. And in fact, she was — when she was growing up, she would oftentimes label things and things like that, keep things absolutely—
“A. Yes.
“Q. —straight and where she knew where they could be found and so on, so forth and, in fact, I think I mentioned to you, asked you if your other daughters were like that. I would like to have my kids hang around with them for a while if they wanted. Is that true that she was—
“A. She had everything labeled, catalogued, and on computer. She knew exactly everything that she had. It was all computerized.
“Q. I’m not trying to make light of it, but it was not a situation where when somebody comes home or she comes home, she, like, drops her coat on the floor and, you know, clothes being strung out everywhere, that kind of deal; is that right?
“A. Not as a general rule. Though, if she was very tired, she might kick her shoes off or.
“Q. Maybe walk—
“A. She would pick them up and put them right close.
“Q. Walking around in stocking feet would probably be a pretty loose deal though, right.
“A. Yeah. She quite often would walk around without her shoes.
“Q. Ms. Monti, what were her work habits like?
“A. She worked very hard. She was a little bit of a perfectionist so she probably worked harder than she needed to, but she always felt that the extra effort was worth it.
“Q. Was she into music at all?
“A. She enjoyed listening to music. Yes.
“Q. Did she like live music?
“A. Recorded music. Any land of music.
“Q. And had she ever been married?
“A. No.
“Q. And did- — at the time of her death, did she have a boyfriend? Maybe not politically the way—
“A. At the time of her death, no, she didn’t have a steady boyfriend.
“Q. Had she been engaged earlier in her life?
“A. She was planning on marrying a person.
“Q. That had ended several months earlier?
“A. Yes. Six or eight months before that.
“Q. And were you close to your daughter?
“A. I was very close to my daughter.
“Q. And what was your habit to talk to her on a regular basis?
“A. We talked on a daily basis.
“Q. And what about when she would be out of town?
“A. When she was out of town, we also talked on a daily basis with the exception on this last trip.
“Q. Okay. Did she have to travel a lot with Prophet 21?
“A. There was a fair amount of travel. Yes.
“Q. You said that with the exception of the last trip that she took, you talked everyday. Why didn’t you talk during the last trip she took?
“A. Well, because my husband and I were away. We took a short vacation. We went to Hawaii. And because of the time zone and because Claire also had to go away during that time frame, and there was a different time than our home town, it was difficult for us to get in touch easily.
“Q. When is the last time, ma’am, that you saw your daughter alive?
“A. Last time I saw her alive was early in the morning, Friday April, 17th when she took my husband and I to the airport.
“Q. Is that when you left for the airport?
“A. Yes.
“Q. She took you to the airport, dropped you off?
“A. Yes.
“Q. Was your daughter ever — you already told us she was very diminutive, very small? Did she bruise easily?
“A. No.
“Q. When is the last time that you had occasion to see her legs?
“A. Thursday night before I left.
“Q. How did that come about?
“A. It came about because Claire Marie had gone to a sale at one of the stores, and she bought some clothing that she wanted to take on a trip, and she brought them over to our home to try them on and get my opinion on some of them, and decide what she would take and what she would not.
“Q. Did you notice whether or not she had any bruises on her legs?
“A. She didn’t have a bruise on her body. I saw her whole body. We were trying on all lands of clothes. She didn’t have a bruise anywhere on her body. I can guarantee that.
“Q. Okay. Was she into physical stuff, like one of these work out type people that’s always doing things, or was it common to see bruises on her?
“A. No, it wasn’t common to see bruises on her. She would get into physical things, in a sense that she liked sports. She belonged to a gym. She had a life time membership—
“Q. When—
“A. —in a gym. She did go and work out at a gym.
“Q. When did you and your husband get back from your trip, vacation trip?
“A. We returned on Sunday, April 26th.
“Q. Okay. Did you check — was there any messages from your daughter on your machine at home, do you have a—
“A. We collected messages while we were away.
“Q. Had she called?
“A. Yes, she called.
“Q. Did she call — did you know when she had gone to Kansas City?
‘.‘A. Yes, we knew.
“Q. That had been the previous — what day?
“A. Thursday.
“Q. Before her death?
“A. Yes.
“Q. Did you have a message from Thursday?
“A. We had a message from Thursday evening that said she arrived safely, and to tell us what hotel she was staying at, give us the phone number and room number.
“Q. Was that common for her to do that kind thing?
“A. Absolutely. There was never a time she was away when she didn’t call and tell us where she was, and give us a phone number and room number.
“Q. Did you know anything about her having switched hotels?
“A. I don’t remember if she mentioned it in the phone call or not, but it was common for her to switch hotels which was why she always called us when she got there.
“Q. Why was that?
“A. If she didn’t like the hotel.
“Q. Why would she switch?
“A. Because she was very fussy. She was very safety conscious. There were certain hotels that if she didn’t like the looks of them, she didn’t stay there, Or if she didn’t like the location or didn’t like the configuration. And unfortunately, Prophet 21, they had a travel person who wasn’t very detail oriented that way, and several times she was booked into a hotel which didn’t meet her expectations or requirements.
“Q. Was exterior entrances to her room one of the issues?
“A. One big issue was she never wanted to stay in a place that had a door from the room out into the parking lot because she didn’t feel it was safe for a young woman to park her car, get out and walk right into her room. She wanted to walk into a lobby and have someone see her come and go, know that she was there.
“Q. Did you — and obviously these are messages you retrieved when you get back Sunday night — or I’m sorry — retrieved—
“A. We retrieved them from Hawaii.
“Q. You were on vacation?
“A. Yes.
“Q. Did she call Friday or Saturday before her death?
“A. She called, I believe, it was Saturday morning. She was very happy, very upbeat. And she had been out in the morning and shopping in local stores, and saw a sale and she called and left a message to say that the Hyvee had aspirin on sale, and she knew my husband was in the habit of taking aspirin everyday, and would we like her to pick some up for us. She did that quite often, picked things up.
“Q. So just kind of common chat ‘everything is okay?
“A. Right. We were leaving voice mail messages back and forth because we didn’t want to wake her in the middle of the night when it was convenient for us to call, and we didn’t expect her to call us because of the expense involved.
“Q. When you got back, when was it that — when you got back on the Sunday evening, did you try to call your daughter?
“A. Yes.
“Q. And I take it you knew where she was staying ‘cause of earlier messages?
“A. Yes.
“Q. And did — tell us about when you called what happened.
“A. It was about eight o’clock in the evening.
“Q. Is that your time?
“A. Our time back east.
“Q. Seven o’clock here then?
“A. Yes.
“Q. Eastern time?
“A. I didn’t think about a time difference. I know it was eight o’clock our time eastern time. We were settled in. We had gotten home some time before that. We wanted to give Claire a chance to be back in her room. So we figured eight o’clock was a good time. So I call the hotel and I asked for her room, and at the time, there was silence on the other end, and the desk clerk said — asked me who I was, which I think was unusual. I didn’t know what to say. So he said, ‘Wait a minute. I need to get someone else.” And another person got on the phone, and I believe that was Detective Brown, and he asked — he told me who he was and, of course, my heart jumped, and then he said “I need to know who you are” so I told him that I was Claire’s mother. And I asked was she okay. And he said, “There’s been an incident in your daughter’s room”, and I said, ‘What kind” and he said, “I really can’t say anything right now”, he says, but I knew it had to be serious because otherwise why would the police be there, and so I got kind of shaky. I called my husband over. We were in the kitchen and I said, “I think you better talk to this man”, and told him that it was a detective, and that they were in Claire’s room and something happened, and he wasn’t telling me what it was.
“Q. Did you find out that night, or was it the next day before you found out?
“A. We found out that night, but much later that night because we weren’t getting a whole lot of information at first. Just that something happened and that it was serious enough for the police to be there, and they were investigating, and they couldn’t tell me anything else. So we waited — I made a couple phone calls back again because I thought we were waiting too long to get that information. And then about 10:30,1 guess it was, that evening, there was a knock on the door, and it was the North Hampton Township police, policeman and policewoman. Of course, we knew that why else would they send — we let them in and they told us that she was dead.
“Q. Did you—
“A. They didn’t tell us anything else. There was no details. They didn’t know. They said there was an investigation. They couldn’t say anything else. Just that she had died.
“Q. Did you and your husband then come to Kansas City?
“A. Yes. The next day on Monday, we spent most of the day on the phone with the police and answered all their questions they had to ask, and then when we caught a plane on Tuesday. We made arrangements for the night. On Tuesday — they told us that Monday. They didn’t want us there Monday; that there was an autopsy going to be performed on the Monday, and after the autopsy, then they could tell us how she died. So they said it will be too soon for us to be there. We flew in on Tuesday, Tuesday afternoon. We saw the police on Wednesday.
“Q. Did they end up releasing some of your daughter’s personal effects to you?
“A.- On Wednesday, yes, Wednesday afternoon before we flew back home. They did release most of my daughter’s belongings.
“Q. Including — and mainly I’m taking it that the things they released to you were articles of clothing, and maybe suitcase things they didn’t feel were of evidentiary value, and other items?
“A. Yes. Everything that they released had already been checked out, dusted for fingerprints. Everything was black, you know.
“Q. Grimy black powder?
“A. Yes. And it was all in bags, and I repacked it in the police station.
“Q. Did they release your daughter’s, I guess I’ll call it, a purse? I don’t know if that’s right. State’s Exhibit 18.
“A. Yes.
“Q. Can you identify that?
“A. Yes. This is my daughter’s purse that she took on the trip. They did release this to me.
“Q. Some people call that a wallet on a string?
“A. It’s called a wallet on a string. Yeah.
“Q. And I asked you to bring that to Kansas when you all came here for the trial?
“A. Yes.
“Q. And there’s been some testimony in this case earlier about some things found in your daughter’s suitcase and in that wallet. I would like for you to tell the jury when you got back home or when you opened your — opened that wallet up, what you found in that wallet?
“A. Well, the first thing I saw when I opened the wallet up was the card from the hotel that had her room number on it.
“Q. Just so we understand, we are not talking about a plastic entry key card. We are talking about another kind of card?
“A. The folder that the key card goes in.
“Q. So it’s just a folder from Howard Johnson, and did it have a number written?
“A. It had Room Number 207 written on it, and it had the full name and address and phone number of the hotel.
“Q. Okay. Is that the kind of thing when you walk in, they won’t tell you the room number; they’ll write it down, slide it to you?
“A. Yes.
“Q. That was right on top?
“A. Right on top.
“Q. Okay.
“A. First thing I saw.
“Q. All right. Was your daughter — did she drink?
“A. No. She was not a drinker.
“Q. Now, you know there’s — I’m not sure how I know to take that. Did she ever drink?
“A. Did she ever take a drink, yes. She took a drink.
“Q. You are telling the jury she was not a big drinker type?
“A. She didn’t like to drink, quite frankly. She would drink certain kinds of wines. She might drink a mixed drink, and she tried beer. She didn’t really care for it. She would drink it when she was with her friends. She was not a heavy drinker. She drank very very litde of anything alcoholic.
“Q. Did she like to dance?
“A. She loved to dance. It was exercise for her and it was a stress reliever. She worked very hard and she felt she needed to get out and be active.
“MR. MORRISON: If I could have just a minute.
“Q. (By Mr. Morrison) Did you — when you brought your effects, did your daughter come home with you as well? She was buried back east?
“A. She was already on an airplane before we got here. Her body was already on its way back.
“MR. MORRISON: Okay. I don’t think I have anything further. Thank you, Ms. Monti.
“THE COURT: Mr. Gyllenborg.
“MR. GYLLENBORG: I have no questions of this witness.’’
A portion of the mother s testimony went to the fact that her daughter was very safety conscious when she traveled and a meticulous and fastidious person in organizing the details of her life. The prosecutor alluded to this evidence in closing by pointing out that Henry’s testimony regarding the events of the murder was inconsistent with the physical evidence and Monti’s personal habits as testified to by her mother:
“How did [Rails and Henry] get into that room? I don’t think they got — I don’t think Claire Marie Monti let them in that room. The most important piece of evidence in this case, Carl Dean Rails’ business card that he’d given to her that night, where was it found? Wasn’t it found in her wallet? No. It had been taken out of her wallet and zipped in another part of that suitcase. Her wallet was zipped in that suitcase. Her wallet that’s right in the top had the card, room card that said ‘Room 207’ laying right on top that anybody was drinking could have probably seen, that was drinking with her that night. You know what that tells us. I think the fact that card [and] her wallet are separated and zipped in different parts of her suitcase tells us she’s in for the night that night. Is somebody that has guests in their room they are going to be making out with and everything going to sit there and take things out of their wallet, put it away? No. Not to mention that Mr. Rodney Wayne Henry, Jr., here also says she didn’t do that. I think she was in that room for a while, and somehow they got in. We’ll probably never now how. Somehow they got in. These guys weren’t going to leave her alone. They had been buying her beers all night. They had her out there on the dance floor and grinding up against her, he’s grinding against her rear end on the dance floor. They are going to get something for that that night .... How do you think she got these injuries we talk about premortem and postmortem injuries? How do you think she got tírese on her knees? How do you think she got stomped on her chest that’s got fabric patterns on it? Because she was clothed when it started, but she wasn’t clothed when it was over. You’ll notice there were no fabric patterns on those knees. Those injuries were around her knees, and here is how they came. You get those kind of injuries on your knees and left elbow and this kind of injury to your right if you’re down on the floor like this (indicating) and somebody’s got your arm and they’re hitting on the back of your head, and your chin drives into the carpet. That’s how you get that bum on your chin because you’re being raped and sodomized while you’re very much alive while two people are doing it, two people are doing it, cranking that arm up while driving her down into that carpet, and you’re tearing her anus while you’re doing it. It couldn’t have happened how he says it happened. It’s impossible. It is absolutely impossible.”
Finally, Henry contends that the prosecutor further erred by referring to the mother’s testimony and urging the jury in closing argument to “think about Mother’s Day yesterday, her mom how she must have felt. How Claire Marie Monti will never have a chance to be a mother, this young professional sharp, security conscious woman . . . .”
The prosecutor s reference to the mother’s grief and the introduction of the mother’s testimony was not relevant to whether the defendant was afflicted by mental disease or defect at the time of the alleged crimes. The prosecutor clearly intended to inflame the passion and prejudice of the jury. The testimony and comments substantially affected the defendant’s right to a fair trial and was prosecutorial misconduct. The introduction of this evidence and the prejudicial references to this evidence is sufficient to require reversal of the defendant’s conviction under the circumstances; therefore, this court need not determine whether the other incidences of prosecutorial misconduct would also require reversal.
Reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Allegrucci, J.;
Ruth Hamman appeals from the district court’s denial of her motion to suppress evidence seized and obtained during a traffic stop and her detention and subsequent convictions of driving under the influence of alcohol and transporting an open container. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The issue is whether the stopping and detaining of Hamman in Lyon County by a Coffey County deputy sheriff was illegal.
The trial court entertained Hamman’s motion to suppress while hearing the evidence in the case. Coffey County Deputy Sheriff Eric Smith testified in the Lyon County trial court about the circumstances in which he stopped Hamman.
On June 12, 2000, Deputy Smith was called to assist a Lyon County deputy. There were juveniles with alcohol at the boat ramp on the east side of Hartford. The boat ramp is on the line between Coffey and Lyon Counties. The juveniles were on the Coffey County side.
In order to get to the boat ramp, Deputy Smith drove what he called the “main thoroughfare” to Hartford from Coffey County into Lyon County and back again into Coffey County. The “main thoroughfare” is a paved road, which is called Angus Road, that generally follows the north/south border between Coffey and Lyon Counties. For some distance, Angus Road is in Lyon County.
After completing the call to the boat ramp, Deputy Smith drove back the way he had come. While in Lyon County, Smith noticed a Plymouth Neon ahead of him that was going approximately 40 miles per hour. Deputy Smith was traveling approximately 55 miles per hour, and he slowed to keep from getting too close to the Neon. The road was generally straight and had lane markings. Smith observed the Neon going to the right side of the road and then veering back toward the center line.
Due to oncoming traffic, Smith was not able to pass the Neon right away. As oncoming traffic approached the Neon, it moved to the right side of the lane. As oncoming traffic cleared, the Neon veered back toward the center line. He observed the Neon going from side to side in its lane two or three times. From his training and experience, Smith recognized that driving pattern as an indication that the driver might be under the influence of alcohol. Due to his safety concerns, Smith decided to follow the vehicle.
Within a short time, the driver of the Neon turned on the right turn signal and turned off the pavement onto a gravel road. Smith observed the Neon go off to the left side of the gravel road and the driver “struggle slightly” with the steering wheel to get the car back on the right side of the gravel road. Back on the right side of the road, the Neon slowed almost to a stop before proceeding. Then Smith observed the Neon being driven very slowly and on the far right side, not in the ditch, but right alongside it.
Smith decided that for the sake of safety he should stop the vehicle. Smith asked his dispatcher if there was a Lyon County deputy in the area. He asked his dispatcher to let Lyon County know that he needed a Lyon County deputy to come to his location. Smith was advised that there was a Lyon County deputy in the area.
Smith turned on his emergency lights, and the Neon stopped. Before he got out of his patrol car, Smith was advised that, a Lyon County deputy was en route. Smith got out of his patrol car and approached the Neon. The driver of the Neon had very watery eyes, she moved sluggishly, and she smelled of alcoholic beverage. She produced her driver’s license.
Smith described to Hamman what he had observed and told her that he stopped her on account of the way she was driving. He advised her that he was a Coffey County deputy, that they were in Lyon County, and that they would wait for a Lyon County deputy to arrive and investigate the circumstances. Hamman remained in her automobile.
Deputy Miller, the Lyon County deputy who had been at the Hartford boat ramp a short time earlier, came to where Smith had stopped the Neon. Smith stayed while Miller investigated the offense. Hamman consented to a preliminary breath test, and she was placed under arrest by the Lyon County deputy. With Ham-man’s consent, the Lyon County deputy searched the Neon and found an open can of beer in the armrest console.
On the motion to suppress, the trial court made the following ruling on the record:
“I do find that this is an officer who has been trained in alcohol — detection of alcohol impaired drivers. He has been to the Kansas Law Enforcement Training Center as well as the KDOT training class for 24 hours on the arrest and detection of alcohol impaired drivers. So he has the foundation to determine what are alcohol influence indicators. In this case he did testify that he saw the defendant, I think he used the term veer between the lines, instead of weave but go back and forth two or three time between the lines. He also noticed the slow speed of about 40 m.p.h. on the first county road and then about 10 to 15 m.p.h. on the second couniy road. He also observed, probably more telling was the wide, he described it as a wide turn onto the county road and then hugging the ditch on the second county road that she was traveling on. All of these things are, of course, legal activities or at least possible legal activities but they do add up to an alcohol indicator for this Court or it led the officer to believe, and in fact, he did testify, that he believed that he had probable cause that he had an alcohol impaired driver at this point because the driving that he observed and so as a 'police officer he would have been well within his — it would have been a proper car stop. The only question is, well, he was not responding to a Lyon County request so what jurisdiction does a person, as an individual then have under [State v. Miller, 257 Kan. 844, 896 P.2d 1069 (1995),] to make an arrest or the intention in this case and that’s governed by K.S.A. 22-2403, arrest by a private person and it does, under that statute, allow a person to make an arrest for any crime other than a traffic infraction. This, of course, is not a traffic infraction, it is a traffic misdemeanor, has been or is being committed by the arrested person in the view of the person making the arrest. Well, this officer believed that he had probable cause that this person was committing the crime of DUI in some form so I do believe that he did have that probable cause. I believe that this act was — I don’t know if I should characterize it as an arrest or a detention. I think that once somebody is stopped by a policeman and the lights are flashing and they are told not to leave, that probably constitutes an arrest or just real close to it. I also know the law and K.S.A. 22-2406 anticipates those cases when the officer has probable cause to stop the vehicle and then subsequent determination leads to believe that they no longer have probable cause and they can release the individual and that is what could have happened here if that evidence would have gone that way so I do believe that based upon the facts, especially the fact that in light of the belief that there was a person, DUI, driving the vehicle, it is certainly a serious safety concern. I believe it was probable cause to stop if he was a law enforcement officer under K.S.A. 22-2403 that probable cause would also allow a private person to make that arrest having observed those facts at that time. So based upon those findings the Court is of the opinion that the Motion to Suppress as filed by the defendant in this case, should be denied.”
In summary, the trial court concluded that it was proper for Smith, as a private person, to arrest Hamman. The trial court reasoned as follows: Smith was trained and experienced in recognizing indicators of driving under the influence. Smith observed indicators of driving under the influence in Hamman’s driving. Smith, therefore, had probable cause to stop Hamman. DUI is a traffic misdemeanor, which is subject to a citizen s arrest. See K.S.A. 2001 Supp. 22-2403(2). Because Smith had probable cause to stop Ham-man, he could do so as a private person regardless of the Lyon County location pursuant to 22-2403(2) and State v. Miller, 257 Kan. 844, 896 P.2d 1069 (1995).
K.S.A. 2001 Supp. 22-2401a(l) provides: “[S]heriffs and their deputies may exercise their powers as law enforcement officers: (a) Anywhere within their county; and (b) in any other place when a request for assistance has been made bylaw enforcement officers from that place or when in fresh pursuit of a person.” The trial court determined, and the State concedes, that 22-2401a is not applicable and did not authorize Deputy Smith to arrest Hamman in Lyon County.
With regard to a citizen’s arrest, Hamman argues that Deputy Smith, as a private person, did not have authority to stop her pursuant to K.S.A. 2001 Supp. 22-2403, which provides:
“A person who is not a law enforcement officer may arrest another person when:
(1) A felony has been or is being committed and the person making the arrest has probable cause to believe that the arrested person is guilty thereof; or
(2) any crime, other than a traffic infraction or a cigarette or tobacco infraction, has been or is being committed by the arrested person in the view of the person making the arrest.”
Subsection (1) does not apply because the offenses Hamman was charged with were not felonies.
Hamman contends that subsection (2) does not apply because she did not commit a crime in Deputy Smith’s view. She relies on Miller for support of her construction of K.S.A. 2001 Supp. 22-2403(2).
In Miller, the court considered whether an Osage City police officer’s arresting the defendant at his home in Lyndon, without a request for assistance or fresh pursuit, affected the validity of the arrest. Because the Osage City police officer was acting outside his jurisdiction, as set out in 22-2401a, the court considered the validity of the arrest under 22-2403. The court stated: “As recognized by this court in [State v.] Shienle, 218 Kan. [637], 640-41, [545 P.2d 1129 (1976)], the general rule is that a law enforcement officer who makes a warrantless arrest outside the territorial limits of the officer’s jurisdiction must be treated as a private person.” 257 Kan. at 851.
Thus, in determining whether Deputy Smith’s stop of Hamman in Lyon County was authorized by the citizen’s arrest statute, K.S.A. 2001 Supp. 22-2403(2), the court need look no further than the question of probable cause. The trial court found that there were indicators of driving under the influence in Hamman’s driving that were readily recognizable to Smith. According to the trial court, on the basis of the driving patterns observed by Smith, he had probable cause to believe that Hamman was committing the offense of driving under the influence.
On the probable cause issue, Hamman makes two points in her brief. First, Hamman asserts that Deputy Smith admitted that when he stopped her he did not have probable cause to arrest her and that he observed no violation of the law. The testimony Ham-man refers to was given by Smith in response to questions about what further steps he would have taken before arresting Hamman if he had stopped her in Coffey County. Smith said that if he had been acting as an arresting officer in Coffey County, he would have continued his observations after stopping her and would have conducted some roadside testing, such as the preliminary breath test. Smith was first asked:
“Q. Now it’s my understanding that at the time you detained her you didn’t place her under arrest because you didn’t feel Mice you had authority to do so?
“A. Correct.”
Then the following questions were asked and answered:
“Q. Did you also testify on direct examination that the person possibly was driving under'the influence?
“A. Yes, I did.
“Q. Officer, had this been a stop within your jurisdiction, would you have proceeded to obtain additional information in order to determine if you had probable cause to arrest this person?
“A. No, I would not.
“Q. You would have just arrested her?
“A. I’m sorry. At which point are you talking about?
“Q. Had you made this stop in Coffey County.
“A. Yes.
“Q. Would you have requested or obtained additional information, such as observations, testing, PBT to ascertain if you had probable cause to make an arrest?
“A. I understand. Yes I would have.
“Q. But at that point, but at that point you didn’t have that?
“A. No, I did not.”
Then, on redirect, Smith testified:
“Q. At that point she was not under arrest, was she?
“A. No she was not.
“Q. Have you, in your experience as a law enforcement officer in Coffey County and/or the City of Burlington made an investigatory detention under the conditions that you’ve described you saw in this case?
“A. Yes I have.”
Smith’s testimony was given in reference to making a formal arrest of Hamman, which he did not do, but left that to the Lyon County deputy. The trial court found that Hamman’s driving patterns provided Smith with probable cause to arrest her pursuant to the citizen’s arrest statute, K.S.A. 2001 Supp. 22-2403(2). That Smith continued his observations once he approached the car and would have conducted some roadside testing in other circumstances does not mean that he did not have probable cause. Writing about warrantless arrests, this court has defined probable cause as “the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt.” Key v. Hein, Ebert & Weir, Chtd., 265 Kan. 124, Syl. ¶ 2, 960 P.2d 746 (1998). In the present case, Smith had a reasonable belief that Hamman was driving under the influence at the time he turned on his emergency lights to stop her. Once he stopped her and observed her and smelled alcoholic beverage, he had a reasonable belief that she should be detained until a Lyon County deputy arrived.
Second, Hamman contends that the trial court ignored precedent, specifically Miller. The parties in Miller stipulated that the Osage City police officers knew that a burglary and theft had occurred in Osage City. A third person, who was not involved in the burglary and theft, told an arresting officer that Miller might have been involved. On the basis of that information, the Osage City police officers went to Miller’s house in Lyndon in the early morning hours and arrested him. The magistrate judge dismissed the theft and burglary charges against Miller; on stipulated facts, the district court affirmed. This court determined that the stipulation did not contain probable cause to support a citizen’s arrest. 257 Kan. at 852. This court remanded, however, directing the trial court to consider whether the arrest may have been valid, not as a citizen’s arrest, but as an arrest by law enforcement officers in exigent circumstances, pursuant to 22-2401a. 257 Kan. at 852-53.
Miller is entirely distinguishable from the present case on the facts. The basis for the officers’ extraterritorial arrest of Miller was an informant’s statement that Miller might have been involved in a burglary and theft. The basis for Smith’s arrest of Hamman was his personal observation of her driving.
Although not raised by the State, there is an additional justification for Deputy Smith stopping Hamman. In State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992), the deputy sheriff stopped Vistuba after observing him driving in much the same way as Ham-man did in the present case. The deputy testified that he had no reason to believe Vistuba committed or was about to commit any crime or traffic violation. He stopped Vistuba because he believed Vistuba was falling asleep. The deputy proceeded to arrest Vistuba for DUI. We upheld the arrest on appeal, holding that “[a] civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop if die safety reasons are based upon specific and articulable facts.” 251 Kan. 821, Syl. ¶ 1. And further, such a stop does not violate either the 14th Amendment to the United States Constitution or Section 15 of the Kansas Constitution Bill of Rights. At issue is public safety, and in Vistuba we found persuasive the following observation by the United States Supreme Court in upholding a warrantless search of defendant’s vehicle based on public safety reasons:
“ ‘Local police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” 251 Kan. at 824 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 93 S. Ct. 2523 [1973]).
Here, the stop was made in Lyon County rather than Coffey County, but that is a distinction without a difference. In our view, there is no valid reason to limit a valid safety stop by Deputy Smith to Coffey County.
Affirmed.
Davis, J., not participating.
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|
The opinion of the court was delivered by
Allegrucci, J.:
This personal injury action arose out of a fraternity initiation event where Matthew Prime excessively consumed alcoholic beverages, which led to his hospitalization. Prime sued the local chapter and the national organization of the fraternity, the corporate owner of the real property where the fraternity chapter is housed, five individual fraternity members, the University of Kansas, and the Board of Regents. The university and regents were dismissed by Prime. Prime appeals from the trial court’s order dismissing the local chapter and the trial court’s order granting summary judgment to the remaining defendants. This court transferred the case from the Court of Appeals. K.S.A. 20-3018(c).
Matthew Prime was a 19-year-old pledge of the Beta Gamma chapter of Pi Kappa Alpha fraternity at the University of Kansas when he attended Pledge Dad Night at the fraternity house. Prime was provided alcoholic beverages in large quantities and encouraged but not required to drink them during the occasion. Prime drank excessively and lost consciousness. Fraternity members took Prime to the hospital. Prime was hospitalized with a blood alcohol concentration of .294. He alleged that he incurred medical expenses but no permanent injuries.
The district court’s findings of fact specific to the various defendants will be set out where necessary to the discussion of the issues.
Prime raises four issues on appeal: (1) Is Beta Gamma chapter, an unincorporated association, a legal entity that can be sued; (2) did the district court erroneously enter summary judgment in favor of the individual fraternity member defendants; (3) did the district court erroneously enter summary judgment in favor of Pi Kappa Alpha; and (4) did the district court erroneously enter summary judgment in favor of Mount Oread House Corporation?
The district court granted Beta Gamma Chapter’s motion to dismiss on the ground that the chapter is an unincorporated association, which cannot be sued in the name of the association. The district court’s decision involved only a question of law, and this court’s review is unlimited.
In Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P.2d 891 (1965), the court stated: “It is the general rule to which this jurisdiction has long adhered, that in the absence of a statute to the contrary, an unincorporated association is not a legal entity and can neither sue nor be sued in the name of the association. [Citations omitted.]” 196 Kan. at 3. Prime contends that after the decision in Kansas Private Club Assn. was issued, a statute was enacted that superseded the general rule stated in the case.
The statute cited by Prime is K.S.A. 60-223b, which became effective on publication in the Kansas Reports and in K.S.A. 1969 Supp. It provides:
“An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties maybe maintained only if the court is satisfied that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in K.S.A. 60-223 (d), and the procedure for dismissal or compromise of the action shall correspond with that provided in K.S.A. 60-223 (e).”
K.S.A. 60-223b plainly applies only to class actions.
Prime recognizes that a decision issued by the Court of Appeals long after K.S.A. 60-223b became effective cites Kansas Private Club Assn. and follows the general rule stated in that case. See Frey, Inc. v. City of Wichita, 11 Kan. App. 2d 116, 715 P.2d 417 (1986). In Frey, now-justice Abbott wrote for the Court of Appeals that a homeowners association “was never incorporated; therefore, it is not a legal entity and can neither sue nor be sued in the name of the Association.” 11 Kan. App. 2d at 117.
The rule in Kansas is that an unincorporated association can neither sue nor be sued, and K.S.A. 60-223b does not affect application of the rule in this nonclass action. The district court properly dismissed Prime’s claims against the Beta Gamma Chapter of the Pi Kappa Alpha fraternity.
Prime next contends that Fay, Guerrieri, Aubuchon, Kosciuluk, and Harper owed him a duty not to haze him and a duty not to provide beer and liquor in harmful quantities. The district court entertained three motions for summary judgment from the individual defendants and granted each of the motions.
With regard to Fay, the district court wrote:
“The Court finds that Kansas does not recognize a cause of action against Jeff Fay for negligently furnishing liquor to Matthew Prime, a minor, pursuant to Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992). The Court further finds no authority supporting a cause of actiqn against defendant Fay for hazing pursuant to K.S.A. 21-3434. Based upon the uncontroverted facts submitted by defendant Fay and admitted by plaintiff, Mr. Prime had very little interaction with Jeff Fay on Pledge Dad Night. Plaintiff further admitted that Jeff Fay did not do or say anything to encourage him to drink and was informed while in Jeff Fay’s room on Pledge Dad Night that he did not have to drink if he didn’t want to. This Court further finds that defendant Fay had no legal duty to prevent plaintiff from injuring himself due to the ingestion of alcohol.”
With regard to Guerrieri, Aubuchon, and Kosciuluk, the district court repeated that Kansas courts do not recognize a cause of action for furnishing alcoholic beverages to a minor and cited Mills. The district court further stated that Prime voluntarily consumed alcoholic beverages to the levels that made him ill and that Guerrieri, Aubuchon, and Kosciuluk owed Prime no duty.
In ruling for Harper, the district court made the following findings of fact and conclusions of law:
“Findings of Uncontroverted Fact
“1. At the time of the incident in question the Plaintiff was a pledge seeking admission to membership in Pi Kappa Alpha.
“2. The Plaintiff was nineteen years of age on the date of the incident in question.
“3. The Plaintiff had consumed alcoholic beverages prior to tire incident in question both in high school and college.
“4. Prior to the incident in question the Plaintiff had been intoxicated on more than one occasion and was familiar with the signs of becoming intoxicated.
“5. When the Plaintiff arrived at Pi Kappa Alpha the evening of Februaiy 26, 1997 for his assigned duties and study time he learned that Pledge Dad Night would take place that evening.
“6. Pledge Dad Night was a social function customarily held by Pi Kappa Alpha to introduce pledges to their assigned pledge fathers.
“7. The Plaintiff understood that the function of a pledge dad in the fraternity would be an active member of the fraternity who could provide advice to the pledge son. Plaintiff had requested Brian Harper to be assigned as his pledge dad.
“8. On the evening of Pledge Dad Night the pledges, including the Plaintiff, went from room to room in the fraternity to ask questions of person in those rooms seeking to obtain information as to the identity of their respective pledge dads. Alcohol was available for the pledges to consume in each of these rooms.
“9. The Plaintiff was told he did not have to drink if he did not want to but, ‘if you want to drink that would be fine because it will be “the time of your life.” The Plaintiff cannot recall who actually told him drinking would make Pledge Dad Night the time of his life.’
“10. No one in the fraternity told the Plaintiff that he would have to drink alcoholic beverages to participate in Pledge Dad Night or to become a member Pi Kappa Alpha. The Plaintiff consumed alcoholic beverages because of what he perceived to be ‘peer pressure’ and to ‘fit in.’
“11. The Plaintiff spent only about five minutes with Brian Harper during Pledge Dad Night. Brian Harper was in the sixth and last room.
“12. In the last room, Brian Harper told the Plaintiff that Harper was his pledge dad and handed him a bottle of Mad Dog 20/20. It was traditional for pledge dads to provide a bottle of Mad Dog 20/20 to their pledge sons. Brian Harper did not request or suggest that the Plaintiff open the bottle or drink out of it. The Plaintiff did not seek any advice from Brian Harper. After spending a total of approximately five minutes total in the room the Plaintiff and Brian Harper went downstairs to join other fraternity members in singing fraternity songs.
“13. Brian Harper returned to his room after a short period of time to study for a test the next morning. He did not participate in or supervise any of the pledge activities that evening.
“14. Brian Harper did not hold an office in the fraternity having anything to do with setting up, organizing or supervising Pledge-Dad Night.
“15. Brian Harper went downstairs at approximately 1:00 a.m. and found the Plaintiff passed out in the living room. He then, with the assistance of two other fraternity members, took the Plaintiff to Lawrence Memorial Hospital in Brian Harper’s vehicle.
“16. Dr. Lida Osbem, the emergency room physician who treated the Plaintiff at Lawrence Memorial Hospital, stated in her records and testified in her deposition that Plaintiff told her his intoxication ‘had nothing to do with hazing and that he was told he did not have to drink alcohol if he did not want to.’
“Conclusions of Law
“1. The Plaintiffs claim against the individual Defendants is that they were negligent in ‘not exercising reasonable care in conducting an initiation ceremony known as Pledge Dad Night’ and ‘negligent in their performance of the ceremony in that the Plaintiff was led through more rooms than the other pledges which resulted in him consuming more alcohol than the other pledges.’
“2. There is no evidence in the discovery record that Brian Harper was at all involved in leading the pledges through the rooms since he remained in one room the entire time. Accordingly, Brian Harper has established an absence of evidence with respect to this claim and is entitled to summary judgment. Crooks v. Greene, 12 Kan. App. 2d 62, 64, 736 P.2d 78 (1987).
“3. Brian Harper was not an officer of the fraternity and played no part in organizing, conducting or supervising the activities of Pledge Dad Night. Brian Harper has established an absence of evidence to support this claim against him and is entitled to summary judgment.
“4. Brian Harper did hand the Plaintiff a bottle of Mad Dog 20/20. The Court, however, does not believe the law in Kansas recognizes a cause of action against an individual for furnishing an alcoholic beverage to another individual. In Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992), the nineteen year old decedent entered a bar and was served nine or ten shots of whiskey and four or five beers in the space of a little over one hour. After being escorted from the bar due to disruptive conduct, he wandered off and was found frozen to death in a drainage ditch behind the building the next morning. In holding that the bar was not hable for furnishing liquor to the nineteen year old decedent, the Kansas Supreme Court held:
‘There is no logic in holding that an intoxicated person who is under twenty-one years of age can recover for his or her own injuries from the furnisher of the liquor but those injured by the intoxicated person cannot. Had an intoxicated minor driver struck a pedestrian (as occurred in Ling) and himself been injured or killed in the accident, the wholly innocent injured pedestrian would have no cause of action against the furnisher of the liquor, but the drunken driver of the vehicle would. ... If such liability is to be imposed, under some or all circumstances, then we conclude, as we did in Ling, that this is a decision to be made by the legislature. (251 Kan. at 442-43)’
“5. The cases from other jurisdictions cited by the Plaintiff are not persuasive in light of the clear Kansas precedent disallowing a right of recovery for furnishing liquor in circumstances much more egregious than those present in this case. This Court is duty-bound to follow Kansas law in the absence of some indication that the Kansas Supreme Court is departing from its previously expressed position. Mercer v. Fritts, 9 Kan. App. 2d 232, 676 P.2d 150, affirmed 236 Kan. 73 (1984).
“6. In all of the cases relied upon by the Plaintiff there was a strong element of coercion that the Court finds was not present in this case as a matter of law. The Plaintiff admits Brian Harper never told him to drink and he was told repeatedly by members of the fraternity that he was not required to consume alcoholic beverages. The Court does not believe the mere fact someone in the fraternity told the Plaintiff if he would drink it would be the ‘time of his fife’ would cause the Kansas Supreme Court to depart from its prior rulings that there is no common law or statutoiy cause of action in this state for furnishing intoxicants to another.
“7. The Court finds based upon the uncontroverted facts that Brian Harper owed no duty and breached no duly to the Plaintiff based upon the events and occurrences of February 26, 1997.”
On appeal, Prime does not challenge the district court’s findings of fact with regard to any of the individual defendants. He contends that the individuals owed a duty of care to him, and he recognizes that the existence of a duty is a question of law. This court’s review of questions of law is unlimited, and its review of the district court’s orders granting summary judgment in favor of the individual defendants on strictly legal grounds is unlimited.
Primes argument is not easy to grasp. It seems he would have us narrowly construe Ling v. Jan’s Liquors, 237 Kan. 629, 703 P.2d 731 (1985), to apply only to negligence per se for violations of K.S.A. 21-3610 and K.S.A. 21-3610a and Mills v. City of Overland Park, 251 Kan. 434, 837 P.2d 370 (1992), to apply only to negligence per se for violations of K.S.A. 41-715. Prime then would have the court adopt the reasoning and result of cases from other states’ courts.
The holding in Ling was that Kansas law does not provide a cause of action against the suppliers of alcohol for persons injured as a result of tire torts of intoxicated patrons, even underage patrons. Ling was severely injured when she was struck by a vehicle driven by 19-year-old Richard Shirley, who was inebriated from an alcoholic beverage purchased at Jan’s Liquors. 237 Kan. at 630. Ling sued Jan’s Liquors alleging negligence on the part of the vendor in selling alcohol to a minor whose intoxication resulted in the injurious accident. The district court dismissed the petition for failure to state a claim on which relief could be granted, and this court affirmed. 237 Kan. at 630. The court reasoned that Kansas does not have a dramshop act, and the court declined to judicially impose third-party liability on suppliers of alcohol for the torts of intoxicated patrons on the ground that it was a policy matter better suited to legislative consideration. 237 Kan. at 640-41. Three members of the court, Justices Lockett, Prager, and Miller, disagreed. 237 Kan. at 642-47. The dissenters believed that Ling stated a cause of action against the liquor vendor because the vendor violated K.S.A. 41-715, which forbids the sale of alcoholic liquor to a minor, and the vendor should bear responsibility for the damage caused as a result of the violation. 237 Kan. at 647.
K.S.A. 41-715 provides:
“(a) No person shall knowingly sell, give away, dispose of, exchange or deliver, or permit the sale, gift or procuring of any alcoholic liquor to or for any person who is an incapacitated person, or any person who is physically or mentally incapacitated by the consumption of such liquor.
“(b) Violation of this section is a misdemeanor punishable by a fine of not less than $100 and not exceeding $250 or imprisonment not exceeding 30 days, or both.”
K.S.A. 41-715, along with K.S.A. 21-3610 and 21-3610a, was considered by the court in Mills as well as in Ling.
The holding in Mills, a 1992 case, was that Kansas law does not provide a cause of action against a supplier of alcohol for the alcohol-related death of a minor patron. After consuming large quantities of alcohol, Mills became disruptive and was escorted from a bar. The following morning, Mills, who was 19 years old, was found frozen to death behind a building in the area. The court found one aspect of Ling, which was the determination that there was no liability under K.S.A. 41-715, to be of particular significance in its consideration of the wrongful death claim. 251 Kan. at 438. The court also considered whether liability could be predicated on a violation of K.S.A. 21-3610 or K.S.A. 21-3610a and concluded that the legislature had not intended to impose civil liability for violations of the statute. 251 Kan. at 443. Two members of the court, Justices Lockett and Abbott, disagreed. 251 Kan. at 448-50. The dissenters believed that the court should recognize a cause of ac tion against the bar and its employees for furnishing alcoholic beverages to the minor. 251 Kan. at 450.
K.S.A. 21-3610 prohibits furnishing alcoholic liquor to a minor, and to do so is punishable as a class B person misdemeanor. There are exceptions:
“(d) It shall be a defense to a prosecution under this section if: (1) The defendant is a licensed retailer, club, drinking establishment or caterer or holds a temporary permit, or an employee thereof; (2) the defendant sold the alcoholic liquor to the minor with reasonable cause to believe that the minor was 21 or more years of age; and (3) to purchase the alcoholic liquor, the minor exhibited to the defendant a driver’s license, Kansas nondriver’s identification card or other official or apparently official document, containing a photograph of the minor and purporting to establish that such minor was 21 or more years of age.”
K.S.A. 21-3610a provides:
“(a) Furnishing cereal malt beverage to a minor is buying for or selling, giving or furnishing, whether directly or indirectly, any cereal malt beverage to any person under the legal age for consumption of cereal malt beverage.
“(b) Furnishing cereal malt beverage to a minor is a class B person misdemeanor for which the minimum fine is $200.”
This statute basically grants the same defense to a prosecution as does K.S.A. 21-3610(d).
Prime cites K.S.A. 21-3434, which makes it a misdemeanor for a social or fraternal organization to promote or permit hazing. Prime recognizes that the statute does not expressly apply to individuals, but his position, as stated in his brief, is: “This did not provide a defense to the defendants who made the same argument about the Illinois statute in Haben [v. Anderson, 232 Ill. App. 3d 260, 597 N.E.2d 655 (1992)].” Haben, however, and Quinn v. Sigma Rho Chapter, 155 Ill. App. 3d 231, 507 N.E.2d 1193 (1987), which Prime also cites, are no longer good law. In Charles v. Seigfried, 165 Ill. 2d 482, 491, 651 N.E.2d 154 (1995), the Illinois Supreme Court held that the entire field of alcohol-related liability had been preempted by the Illinois legislature’s enactment and periodic amendment of a dramshop act. In Wakulich v. Mraz, 322 Ill. App. 3d 768, 751 N.E.2d 1 (2001), the Illinois Court of Appeals recognized that the rulings of Haben and Quinn had been abrogated by Charles.
In addition to the Illinois cases, Prime cites cases from several other states. Prime’s argument seems to be that Ling and Mills are not governing precedent for fraternity liability cases and, in the absence of Kansas fraternity liability cases, the reasoning of fraternity liability cases from other jurisdictions ought to provide guidance to the court. Cases from South Carolina, Arizona, Missouri, and New York are cited by Prime; however, those cases are distinguishable on their facts and applicable law. In addition, Prime does not provide a sufficient reason for concluding that Ling and Mills are not controlling precedent in the circumstances of this case. We conclude that Ling and Mills are controlling and thus would preclude any common-law right of action against providers of alcoholic beverages.
Prime’s final argument with regard to the individual defendants is that each of them owed him a duty of reasonable care, as applied in Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994), and Bower v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986). Bower and Jones are premises liability cases. Brian Harper argues that the “reasonable care” argument is raised by Prime for the first time on appeal. Examination of the petition shows that Prime alleged that Pi Kappa Alpha and Mount Oread House Corporation had breached a duty of reasonable care, but that the individual defendants and the local chapter were alleged to have breached duties not to haze Prime or provide beer or liquor to him at all and not in harmful quantities. Nor do Prime’s suggestions in opposition to the individual defendants’ motions for summary judgment include premises liability arguments. In ruling in favor of all the defendants, the district court clearly stated that the theory of premises liability applied only to “the landlord.” The negligence theories pled against the individual defendants were the liability theories rejected by the district court in granting summary judgment for the individual defendants. It is well established that the court will not consider a new legal theory asserted for the first time on appeal. Wood v. Groh, 269 Kan. 420, 434, 7 P.3d 1163 (2000).
We next consider whether the district court erroneously entered summary judgment in favor of Pi Kappa Alpha. The district court made the following findings of fact with regard to Pi Kappa Alpha Fraternity, referring to it as “Tennessee”:
“3. The Court finds that Tennessee’s principal place of business is in Memphis Tennessee and that there were 200 different chapters in the Pi Kappa Alpha Fraternity in February of 1997 which were located in 200 different colleges and universities throughout the United States and Canada. Each chapter is a separate, unincorporated association composed of undergraduate college students. Each chapter exists under the law of a particular state where it is located. Tennessee does not attempt to keep up with the day-to-day activities of any chapters and did not attempt to keep up with tire day-to-day activities of the Chapter at the University of Kansas. Tennessee is not informed about a chapter’s social functions, and Tennessee does not participate in a chapter’s social functions. Tennessee did not possess the right nor the ability to control the day-to-day activities of tire Chapter at tire University of Kansas and did not exercise any control over such activities. All of the chapters and undergraduate members, together with alumni and other fraternally affiliated entities constitute the entire Pi Kappa Alpha Fraternity. The relationship between Tennessee and the various chapters of the fraternity are governed by the Relationship Statement made an attachment to Defendant Tennessee’s Memorandum in Support. It makes clear that Tennessee serves as a resource and support service organization for chapters and members. It serves as a national clearinghouse for the various chapters, members, alumni, and interested groups to share ideas and fellowship, to distribute such information or assistance, to arrange periodic national meetings, to publish fraternal communications, and to collect dues to defray expenses.
“4. The Court further finds that as to the allegations in Plaintiff s Petition regarding the Pledge Dad Night, Tennessee did not plan, participate in, schedule, coordinate, direct or have any involvement with that event, or any similar event in which intoxicating beverages were consumed. Tennessee was never informed as to the method, practice, procedure or custom of the Chapter at the University of Kansas with regard to Pledge Dad Night prior to the incident alleged in Plaintiff s petition. Tennessee was not aware of the event of Pledge Dad Night relative to the local chapter at the University of Kansas before it received the Petition initiating this lawsuit. Further the plaintiff acknowledges that he is unaware of any facts that would suggest that Tennessee knew that Pledge Dad Night was going to occur on the night of this incident. The only contact that plaintiff had with Tennessee was subsequent to the incident when a representative of Tennessee came to the University of Kansas after the incident at the request of the University.
“5. The Court further finds that Tennessee has a standard concerning hazing contained in ‘Standards for Retention of Membership, Officer Status, and a Chapter Charter in Good Standing.’ The standard defines hazing, in summary, as in- eluding physical abuse, sleep deprivation, or anything that is contrary to the appropriate laws. The standard also includes the need of chapters to comply with all applicable laws regarding alcohol. The standard states that the Chapter should abide by the standards for retention, and if they do not, they are subject to a charter suspension or termination. The standard further specifically prohibits hazing activities as defined in the standard.”
Prime’s theories of liability against Pi Kappa Alpha were: (1) The national fraternity owed him a duty to supervise and control the local chapter to protect him from harm; and (2) the national fraternity is liable to Prime for the acts of the local chapter under a theory of apparent agency. The district court rejected both theories.
The district court concluded that the national fraternity had no duty to control, supervise, or protect Prime because “the relationship between Tennessee and the local chapter and Tennessee and the plaintiff are insufficient to create a special relationship which would require Tennessee to protect the plaintiff from harm.” On appeal, Prime offers brief suggestions for distinguishing cases that were relied on by Pi Kappa Alpha in its summary judgment motion but were not cited by the district court in its ruling.
A quick look at the cases cited by Prime reveals that some state courts impose liability on national fraternities and others do not. Liability was imposed on the national fraternity organization in Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (1986), and in Morrison v. Kappa Alpha Psi Fraternity, 738 So. 2d 1105 (La. App. 1999). National fraternity organizations were not held liable in Alumni Ass’n. v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990); Foster v. Purdue University, 567 N.E.2d 865 (Ind. App. 1991); Ex parte Barran, 730 So. 2d 203 (Ala. 1998); and Walker v. Phi Beta Sigma Fraternity (Rho Chapter), 706 So. 2d 525 (La. App. 1997). These cases represent many different factual settings, and, as Prime notes, not all involve injuries due to intoxication or injuries to aspiring fraternity members.
Irrespective of the cases from other states’ courts, the issue for this court is whether the national fraternity organization had a duty to protect Prime from harm from excessive consumption of alcoholic beverages. As already discussed, Kansas does not impose li ability on the supplier of the alcoholic beverages for harm suffered by a minor due to intoxication. Where there is no legal basis for imposing liability on the fraternity members who provided alcoholic beverages to Prime, for the same reasons, there is no legal basis for imposing liability on the national organization.
Prime also contends that the district court erroneously entered summary judgment in favor of Mount Oread House Corporation. In granting summary judgment in favor of Mount Oread House Corporation (MOHC), the district court made the following findings of fact:
“MOHC is in the business of owning and maintaining the property and house at 2000 Stewart in Lawrence, Kansas, which was leased or rented to the members of the local chapter of the Pi Kappa Alpha Fraternity in February of 1997. There is no -written agreement between MOHC and the chapter members; rather, there was an oral agreement pertaining to the payment of rents and upkeep of the house. The members were to maintain the house on a day-to-day basis but were required to pay for any damage to the property or its contents beyond normal wear and tear. MOHC was responsible for capital improvements such as maintaining the driveway, structure, and roof of the house. MOHC officers met monthly or every other month to review the status of the corporation and to address issues regarding maintenance, improvements, and the payment of rents. The meetings of the officers of MOHC typically were conducted at the chapter house so drey could review the maintenance and upkeep of the house in person. On occasion, recommendations were made to the chapter members by the officers concerning the necessity for maintenance and upkeep much as a landlord would to a tenant. During these meetings MOHC officers would receive reports from officers of the chapter, typically the president and treasurer, with regard to issues concerning maintenance, upkeep, and finances of the house. During 1997, and other years, there were arrearages on the payment of rents for which MOHC officers sought an explanation and a remedial plan. MOHC does not have a policy concerning the consumption of alcohol in the house; rather, it expects the chapter members to comply with the policies of the universities.
“10. The Court further finds that at no time did the plaintiff receive any written information from MOHC concerning the operation of the house or the local chapter. Plaintiff acknowledges that he is not aware of any facts that would suggest that anyone at MOHC knew that Pledge Dad Night was going to occur on the night the incident happened and, to his knowledge, plaintiff has never had any contact with anyone from MOHC.”
Prime alleged in his petition that MOHC owed him a duty “to use reasonable care toward those invited onto its real property” and breached that duty. In its order granting summary judgment, the district court fleshed out Prime’s theories of liability against MOHC:
“11. Plaintiffs counsel acknowledged at the pretrial conference that his theory of liability with regard to MOHC is that of premises liability. He argues that even though MOHC was not a landlord in possession of the leased property, MOHC is hable to the plaintiff under the exception to the general rule of no liability because the premises were leased for admission to the pubhc. Plaintiff argues that such liability is grounded in Restatement (Second) of Torts § 359 which imposes liability if the lessor knows or should have known by the exercise of reasonable care that an undiscovered condition involves an unreasonable risk of harm to third persons; and has reason to expect that the lessee will admit them before the land is put in safe condition for their reception and fails to exercise reasonable care to discover or remedy the condition or otherwise to protect such persons against it. Defendant MOHC argues that its property is not leased for the admission of the pubhc but rather is a residence much like an apartment or private dwelling. Further, there was no inherently defective condition which posed an unreasonable risk of harm to the plaintiff or others on the property; and that the ‘condition’ constituting the events of Pledge Dad Night is not the type of condition contemplated which would pose a duty upon the landlord from which to correct or protect the plaintiff.
“12. The Court has previously found that the local chapter is an unincorporated association of individuals. It further finds that Restatement (Second) of Torts § 359 in inapplicable under the facts of this case insofar as property owned by MOHC was not leased for admission to the pubhc; that there was no inherent condition upon the property which MOHC owed a duty to protect or repair; and that there are insufficient facts in the record to demonstrate that the event of Pledge Dad Night was a ‘condition’ contemplated by the Restatement or that MOHC knew of or should have known of this condition and prevented it. The plaintiff further argues that, as a second basis for liability, MOHC undertook gratuitously to render services to the local chapter beyond that of landlord and, as such, is hable to plaintiff under the Restatement of Torts § 324A. The Court finds that MOHC did not undertake, gratuitously or for consideration, to render services to the local chapter members for which it should have recognized the need for protection of the plaintiff.”
On appeal, Prime concedes that Kansas courts apply a general rule of no liability for landlords. Citing Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), he contends, however, that MOHC should be liable to him under the pubhc admission exception to the general rule, which is stated in § 359 of Restatement (Second) of Torts (1965). As noted by the district court, § 359 states circumstances in which a lessor may be hable for injuries caused by a condition of the real property. Prime argues that the excessive consumption of alcoholic beverages in the fraternity house should be deemed by the court to be a condition within the meaning of § 359. The reasoning of the court in Bowers, however, establishes a category of “active negligence” for injuries due to activities rather than a condition on the premises. 240 Kan. at 222.
Any exception to landlord immunity that has been recognized by this court has been for personal injuries caused by a defective condition on the premises. In addition, liability has been conditioned on the defect existing at the time the tenant took possession and being latent rather than reasonably discernible by the tenant. 216 Kan. at 488-93. In Roseberry, the court concluded that the landlord had no liability to a guest who fell on icy front steps because the condition did not exist at the time the tenant moved in and the condition was obvious to the tenant. An activity, such as consumption of alcoholic beverages with the encouragement of the tenants, of course, is discernible to the tenants and would not fall within any exception to the general rule of landlord immunity.
Prime also contends that MOHC is liable because it undertook to render services to the fraternity house tenant, which services MOHC recognized as necessary for the protection of third parties. Prime cites § 324A of the Restatement (Second) of Torts (1965). Apparently, Prime’s argument is based on several factors that require an inferential factual link that the district court was unwilling to make and this court declines to make as well. Prime asserts that because the MOHC officers met at the fraternity house where it presumably saw debris from alcoholic consumption and the KU Interfratemity Council placed the fraternity on social probation, MOHC “knew” that the tenants engaged in activities that endangered third persons. Based on its constructive knowledge, Prime would place responsibility for preventing Pledge Dad Night or prohibiting the serving of alcoholic beverages at the event on MOHC. There is no factual basis for this court’s finding that MOHC knew of excessive consumption of alcoholic beverages in the fraternity house, and there is no legal basis for holding the landlord responsible.
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The opinion of the court was delivered by
Six, J.:
This is a breach of contract action. Resolution is based on our interpretation of K.S.A. 40-2,101, a “mandated-provider” or “freedom of choice” statute. Plaintiff Mark A. Beck, a chiropractor, was a contracting provider with defendant Blue Cross and Blue Shield of Kansas, Inc. (Blue Cross) from 1992 through 1996. Dr. Beck sued Blue Cross, claiming his contracts with Blue Cross violated K.S.A. 40-2,101. The jury awarded damages to Dr. Beck in the sum of $1,602,200.50.
Blue Cross appeals from the denial of its K.S.A. 2001 Supp. 60-250 motion for judgment as a matter of law (directed verdict) asking us to vacate the jury’s verdict.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
The first impression issues are: (1) whether the contracts between Dr. Beck and Blue Cross violated K.S.A. 40-2,101, and (2) if the answer to issue (1) is “yes” and K.S.A. 40-2,101 prohibits disparate treatment of health care providers, whether there was evidence of a disparate impact on Dr. Beck. We hold that the contracts here do not violate K.S.A. 40-2,101. Thus, we do not reach the second issue. We reverse the judgment in favor of Dr. Beck and remand with instructions to enter judgment for Blue Cross.
FACTS
Dr. Beck is a chiropractor licensed by the Kansas Board of Healing Arts. During the relevant time period, Dr. Beck operated three chiropractic clinics in Wichita. Each clinic contracted with Blue Cross to provide chiropractic services to persons insured by Blue Cross.
The Contracts
Two types of form contracts prepared by Blue Cross between Dr. Beck and Blue Cross are at issue in here. The contracts govern the terms of reimbursement received by Dr. Beck from Blue Cross when services are provided to a Blue Cross insured. The first is the “competitive allowance program” contract (CAP contract) and the second is the “Kansas Chiropractor Network contract” (KCN contract).
The CAP contract required Dr. Beck to perform medically necessary chiropractic services. Dr. Beck agreed to accept a maximum allowable payment, which Blue Cross would set each year for each procedure. He also agreed to a “most favored nation” clause, so Blue Cross would not pay more than Dr. Beck received from some other payor for any particular procedure. For each covered service, Dr. Beck agreed to accept the maximum allowable payment as payment in full.
In addition, Blue Cross periodically issued policy memos to supplement the provider agreement. The policy memos became a part of the agreement between Dr. Beck and Blue Cross. Both the CAP and KCN contracts said:
“Sec. Ill, GENERAL AGREEMENT OF THE PARTIES
“A. The chiropractor agrees to:
“2. . . . Future amendments shall be provided to the chiropractor at least 30 days prior to the effective date of the amendments. In the event that the changes in the policies and procedures are unacceptable to the chiropractor, this contract may be cancelled by providing written notice to Blue Cross and Blue Shield that the contract is to be terminated 30 days from the date of the notice. If the chiropractor has not exercised, in writing, a notice of cancellation of this contract on or before the effective date of such amendments, the chiropractor agrees to abide by such amendments as long as this contract shall remain in effect.” (Emphasis added.)
The KCN contract was initiated in 1990 as a pilot program with chiropractors. If a chiropractor was a contracting provider under a KCN agreement, the chiropractor’s billings would be adjusted or discounted from 0 percent to 50 percent, depending upon the chiropractor’s average allowed charge per patient per year (AACPPY) from the previous year. The higher the chiropractor’s AACPPY, the greater the discount applied to the chiropractor’s billings the following year. The applicable discount was applied to the maximum allowed payment under the CAP contract. Thus, in 1996, Blue Cross agreed to pay Dr. Beck’s usual charge for covered services, not to exceed the maximum allowed payment under the CAP contract less Dr. Beck’s 50 percent discount under the KCN con tract. No discount was applied to Dr. Beck under the KCN contract from 1991 through 1995.
Blue Cross required health care providers to submit bills using the American Medical Association Current Procedure Technology (CPT) codes. However, the inclusion of a procedure in the codes did not mean that Blue Cross provided coverage for that procedure. The CPT code manual provided separate codes for office visits and manipulations. Blue Cross “Policy Memo No. 2 OFFICE/OUTPATIENT VISIT” said under “CONTENT OF SERVICE” that “[ujsual fees for the professional services” for office visits “are considered to include” the examination of the patient and any manipulations, the principal treatment offered by chiropractors. This policy is similar to the one used by Medicare, as Medicare did not pay chiropractors separately for an office visit during which a manipulation was performed. Dr. Beck did not exercise his right under either the CAP or the KCN contracts to declare the Policy Memo No. 2 amendment “unacceptable.” Thus, he agreed “to abide by” its terms. In 1994, however, Dr. Beck did complain to Blue Cross that he was not permitted to bill separately for an office visit and a manipulation and was not getting paid for both services.
Dr. Beck also complained about Blue Cross’ policy of paying him for adjusting the spine as one area, regardless of the number of manipulations performed on multiple areas, i.e., neck, mid back, and low back. This policy also was similar to Medicare’s policy. Medicare will not pay for more than one manipulation on a particular visit.
Dr. Beck also was displeased with Blue Cross’ policy on treatment modalities, i.e., heat packs, ice packs, ultrasound, traction, and therapy. If Dr. Beck were to bill for the use of more than two modalities per visit, Blue Cross would require additional paperwork. To avoid delays in payment, Dr. Beck chose to bill only for two modalities, even though he may have provided more during any given visit.
Although Dr. Beck disagreed with Blue Cross’ payment policies, Riere is no dispute that he knew and understood what the policies were when he signed the CAP and KCN contracts in issue here.
Proceedings below
Dr. Beck filed a three-count petition against Blue Cross. Count I alleged that Blue Cross violated K.S.A. 40-2,101 with respect to the CAP contract by (1) refusing to reimburse him for services rendered and (2) refusing to reimburse him in a manner consistent with its reimbursement of other health care providers performing similar services. Count II alleged a violation of K.S.A. 40-2,101 with respect to the KCN contract. Dr. Beck asserted that the sliding scale discount (1) discriminated against chiropractors, (2) failed to compensate chiropractors fully for services provided, and (3) failed to compensate chiropractors in a manner consistent with Blue Cross’ compensation of other health care providers. Count III, later dismissed, alleged that the KCN contract was an unfair and deceptive trade practice.
In pretrial proceedings, Blue Cross moved for summary judgment on the basis that Dr. Beck had agreed to all of the cost containment measures challenged in his lawsuit. Blue Cross also contended that unequal levels of reimbursement to different health care providers did not violate K.S.A. 40-2,101. According to Blue Cross, K.S.A. 40-2,101 was not relevant to Dr. Beck’s claims because the statute prohibited neither cost containment measures nor discrimination in the methods or rates of payment to health care providers.
In opposing the Blue Cross summary judgment motion, Dr. Beck did not dispute either that he had entered into the contracts voluntarily or that the contracts allowed Blue Cross to limit payment. Instead, he argued that his contracts violated K.S.A. 40-2,101 and, therefore, were unenforceable. Dr. Beck contended that K.S.A. 40-2,101 required Blue Cross to reimburse health care providers on an equitable basis. He also asserted that the statute would be meaningless if it permitted Blue Cross to reimburse chiropractors at a “substantially different level” than other health care providers.
The district court found that genuine issues of material fact precluded summary judgment, stating:
“A plain reading of [K.S.A. 40-2,101] makes it clear the legislature intended that a health care provider who gives a service which is within the realm of the pro vider’s expertise will not have that claim denied. The statute does not carry prohibitions against reduction contracts or require equal pay for all general services; i.e., the same rate of pay for manipulation as for back surgery. The primary purpose of the statute was to prevent health insurance carriers from denying a claim simply because they did not feel one area of practice governed by the Healing Arts Act should not [sic] be considered competent. In this manner, the statute does prevent discrimination against any field of practice governed by the Healing Arts Act.”
At trial, Dr. Beck changed his theory of the case to conform to that ruling. His counsel stated that the issue of “disparity in pay” was taken out of the case. Instead, the theory was that Blue Cross’ strategies for containing the cost of chiropractic care violated K.S.A. 40-2,101 because they applied primarily to chiropractors rather than to other health care professionals.
Dr. Beck’s counsel said:
“What’s in the case is the fact that you won’t reimburse a chiropractor for an office visit. You either have an office visit or an adjustment. He can’t have both. You pay an MD for an office visit and other services provided. You are unfairly discriminating against chiropractors for no good reason.
“[Counsel for Blue Cross]: I don’t think that’s the evidence. I don’t see us getting into that.
. “[Dr. Beck’s Counsel]: That’s what the primary focus of my case is going to be.”
During the jury instruction conference, the district court ruled that “where any provision of the contractual documents . . . work to deny any part of [Dr. Beck’s] claims in a discriminatory fashion, then those provisions . . . will not be enforced.” Dr. Beck’s position was that a cost-containment measure applicable to chiropractors was discriminatory if it did not apply to other health care providers in the same fashion.
Dr. Beck testified that a reasonable charge for an office visit during 1992 to 1996 was $29.50. A reasonable charge for a manipulation during the same time period was also $29.50. He also testified “he never agreed with this price” but Blue Cross paid him $11.75 for an individual treatment modality from 1992 to 1996.
Finding by a preponderance of the evidence that Blue Cross breached its contracts, the jury returned a verdict in favor of Dr. Beck in the amount of $1,602,200.50. This amount is equal to the sum of Dr. Beck’s claim for damages attributable to the 1996 50 percent discount under the KCN contract ($70,000.00) and his claim related to payment of a single amount to cover office visits and manipulations ($1,532,200.50). Blue Cross moved for judgment as a matter of law. The motion was denied.
DISCUSSION
Blue Cross argues on appeal that the district court erred in denying its K.S.A. 2001 Supp. 60-250 motion for judgment as a matter of law. It contends that K.S.A. 40-2,101 does not prohibit insurers from entering into cost-control agreements. We agree.
The pivotal question here is whether the contracts between Dr. Beck and Blue Cross violated K.S.A. 40-2,101. Statutory interpretation is required in arriving at the answer. We have unlimited review. Sebelius v. LaFaver, 269 Kan. 918, 922, 9 P.3d 1260 (2000).
Dr. Beck raised seemingly contradictory claims in his petition against Blue Cross. He argued both that (1) Blue Cross breached the contracts, and (2) Blue Cross adhered to the contracts but certain provisions were void under K.S.A. 40-2,101. The contradiction points up the lack of merit in his arguments.
The fundamental rule of statutory construction is keyed to legislative intent. All other rules are subordinate. See Glassman v. Costello, 267 Kan. 509, 517, 986 P.2d 1050 (1999).
K.S.A. 40-2,101 is a “mandated-provider” or “freedom of choice” statute that requires insurers to pay for the services of specific types of health care providers. See Blue Cross & Blue Shield of Kansas City v. Bell, 798 F.2d 1331, 1333 (10th Cir. 1986). K.S.A. 40-2,101 states:
“Notwithstanding any provision of any individual, group or blanket policy of accident and sickness, medical or surgical expense insurance coverage or any provision of a policy, contract, plan or agreement for medical service, issued on or after the effective date of this act, whenever such policy, contract, plan or agreement provides for reimbursement or indemnity for any service which is within the lawful scope of practice of any practitioner licensed under the Kansas healing arts act, reimbursement or indemnification under such policy contract, plan or agreement shall not be denied when such service is rendered by any such licensed practitioner within the lawful scope of his license.”
In his appellate brief, Dr. Beck asserts that there were four violations of K.S.A. 40-2,101 in his contracts with Blue Cross: (1) refusal to pay separately for office visits and manipulations, (2) application of the KCN contract discount, (3) limitation of the number of modalities to two per visit, and (4) refusal to pay for more than one manipulation of the spine per visit.
The district court’s theoiy, announced during the juiy instructions conference, was significant in permitting Dr. Beck’s claims to go to the jury. The district court ruled that “where any provision of the contractual documents, including the policies, work to deny any part of the plaintiff s claims in a discriminatory fashion, then those provisions . . . will not be enforced.”
Blue Cross contends that no fair reading of K.S.A. 40-2,101 can support such a theory. It argues that K.S.A. 40-2,101 prevents insurance companies from refusing to pay otherwise authorized charges to a provider who acts within the scope of his or her license. Blue Cross opines that the statute does not prohibit the use of creative cost-containment devices, even if those devices affect different kinds of health care providers in different ways. We agree.
K.S.A. 40-2,101 requires that Blue Cross pay for covered services if those services are within the scope of Dr. Beck’s license. The statute says nothing about the price Blue Cross must pay for such services or the conditions that Dr. Beck must meet in order to receive payment. If Blue Cross provides coverage for a particular service, and Dr. Beck, as a provider, is licensed to provide that type of service, then Blue Cross must pay for that service in some fashion. K.S.A. 40-2,101 does not attempt to define what that fashion is. The statute does not dictate the price that Blue Cross must pay, the method of payment, or the conditions for payment.
Blue Cross argues that the legislature has affirmatively approved of the concept of cost containment in health insurance. It points to K.S.A. 40-231, which contains various prohibitions on the business in which an insurance company may engage. K.S.A. 40-231(b) provides in pertinent part:
“This section shall not prohibit an insurance company:
(3) from negotiating and entering into contracts for alternative rates of payment with health care providers or other parties who have arranged for alternative rates of payment with health care providers, and offering the benefit of such alternative rates to insureds who select such providers.”
Blue Cross reasons that the legislature’s approval of alternative rates of payment in K.S.A. 40-231(b)(3) must harmonize with K.S.A. 40-2,101. We agree. Dr. Beck counters that K.S.A. 40-231(b)(3) has no effect on the interpretation of K.S.A. 40-2,101. If K.S.A. 40-231(b)(3) provides any guidance here, argues Dr. Beck, it is that the legislature could have explicitly exempted contracts for alternative rates of payment with health care providers from the provisions of K.S.A. 40-2,101.
Blue Cross argues that it is clear that K.S.A. 40-2,101 does not prohibit a disparate impact on different types of health care providers in either the price they receive or die terms and conditions of their payments. It notes that K.S.A. 40-2,101 does not use the term “discrimination,” while other sections of the Kansas Insurance Code specifically prohibit discrimination. See K.S.A. 40-2,109 (prohibiting “unfair discriminatory premiums, policy fees or rates” based on mental or physical handicaps); K.S.A. 2001 Supp. 40-2404(7) (b) (prohibiting “unfair discrimination” in the “amount of premium, policy fees or rates charged for any policy or contract of accident or health insurance”); K.S.A. 40-2215(e)(l) (prohibiting “unfairly discriminatory rate[s]” charged to group sickness and accident policies providing hospital, medical, or surgical expense benefits). We agree with Blue Cross’ contention that K.S.A. 40-2,101 and K.S.A. 40-231(b)(3) are to be harmonized.
The legislative history of K.S.A: 40-2,101 supports our conclusion. According to Dr. Beck, the purpose of K.S.A. 40-2,101 is shown in thé title of this enactment. Dr. Beck quotes from the 1973 Kansas Session Laws that the act “[prohibits] the granting of any preference or discriminating between providers of health care services.” L. 1973 ch. 195, sec. 1. However, Dr. Beck ignores other persuasive legislative history. During hearings on Senate Bill 277, which was later codified as K.S.A. 40-2,101, Dale M. Sprague, executive director and legal counsel of the Kansas Chiropractors Association, entered the following remarks on the record:
“S.B. 277 as written is designed to remove long time discrimination against the Chiropractic patient by the insurance industry. Basically it provides the patient ’freedom of choice’ to utilize the health care services of any practitioner of the Healing Arts without financial regard and worry that his pre-paid health insurance will not cover costs incurred. The bill would eliminate ‘double payment’ by the patient, once to a third party insurer and then to his Chiropractic doctor. It does not in any manner broaden or [a]ffect the scope of practice of the Chiropractor.” Minutes, House Committee on Insurance, Mar. 16, 1973.
The above comments support Blue Cross’ contention that K.S.A. 40-2,101 is inapplicable to health care provider contracts; rather, the statute was intended to provide freedom of choice to insureds. The freedom of choice concept is further emphasized by the fact that the legislature initially considered a version of Senate Bill 277 including additional language that “no such policy, contract, or agreement shall contain any clause or provision designed to grant any preference to or exclude or discriminate against any service provided by any practitioner licensed under the Kansas Healing Arts Act.” (Emphasis added.) See 1973 S.B. 277. Senator Elwaine Pomeroy successfully requested an amendment to strike that language from the bill. Minutes, Senate Committee on Commercial & Financial Institutions, Feb. 20, 1973. The Committee voted to delete the additional language. The Senator subsequently explained that the Senate committee amended the bill to “take out language that would have caused problems for Blue Cross and Blue Shield.” Minutes, House Committee on Insurance, Mar. 16,1973.
Dr. Beck cites Cohen v. Metropolitan Life Ins. Co., 143 Misc. 2d 641, 541 N.Y.S.2d 284 (1988), and Moore v. Metropolitan Life Ins. Co., 33 N.Y.2d 304, 352 N.Y.S.2d 433, 307 N.E.2d 554 (1973), in support of his argument. Both cases are distinguishable on their facts. In Cohen, the insurance company refused to malee any payment to optometrists for diagnostic examinations, but it did pay ophthalmologists for such services. In Moore, the insurance company refused to make any payment to psychologists for psychological services. Under Dr. Beck’s provider contract with Blue Cross, chiropractic manipulations were paid as an included portion of the office visit. Likewise, the contract allowed Dr. Beck compensation for the administration of treatment modalities.
Under a plain reading of K.S.A. 40-2,101, the contracts between Blue Cross and Dr. Beck in issue here did not violate the statute. Our holding disposes of the case; thus, we do not reach Blue Cross’ alternative argument that, even if K.S.A. 40-2,101 prohibits disparate treatment of health care providers, there was insufficient evidence of a disparate impact on Dr. Beck.
The judgment is reversed. The case is remanded with instructions to enter judgment as a matter of law for Blue Cross.
Abbott, J., not participating.
Carol A. Beier, J., assigned. | [
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The opinion of the court was delivered by
McFarland, C.J.:
This is an appeal by the State pursuant to K.S.A. 22-3602(b)(l) from the district court’s dismissal of a criminal complaint charging criminal possession of a firearm (K.S.A. 2001 Supp. 21-4204(a)(3). The district court ruled that, since a suspended imposition of sentence was not a conviction under Missouri law, such disposition could not be considered as the requisite prior conviction under the Kansas statute.
FACTS
In July 1999, David A. Pollard pled guilty in Missouri to the charge of first-degree attempted burglary, a felony. The Missouri court ordered suspended imposition of sentence and placed Pollard on 2 years’ probation. This disposition is authorized by Mo. Rev. Stat. § 557.011 (2000). Under conditions of his probation, Pollard cannot “own, possess, purchase, receive, sell or transport any firearms ... as defined by federal, state, or municipal laws or ordinances.” Pollard signed a statement agreeing to comply with all the conditions of his probation.
On December 6, 2000, the State of Kansas charged Pollard with two offenses: criminal possession of a firearm and unlawfully altering the identification marks of a firearm. Only the first offense is at issue in this appeal. The State’s complaint alleged that Pollard violated K.S.A. 21-4204(a)(3) by virtue of possessing a firearm after having been convicted of a felony within the preceding 5 years.
Pollard filed a motion to dismiss claiming that his 1999 Missouri attempted burglary offense could not serve as the predicate felony under K.S.A. 21-4204(a)(3) because under Missouri law a suspended imposition of sentence does not constitute a conviction. The district court granted Pollard’s motion. The court ruled that for purposes of establishing the prior conviction element of K.S.A. 21-4204(a)(3), the law of the state where a defendant received the disposition for his or her crime controls whether or not a defendant has been convicted of a felony. As applied to Pollard, the court reasoned that if no conviction exists under Missouri law, then the State of Kansas cannot establish the requisite element of Pollard having been convicted of a felony within the previous 5 years.
When the district court dismissed the criminal possession of a firearm charge, the State moved to dismiss the charge of unlawfully altering the identification marks of a firearm. The State’s motion was granted and the State filed the appeal herein.
The sole issue is as follows:
IF A SUSPENDED IMPOSITION OF SENTENCE IS NOT CONSIDERED A CONVICTION IN THE JURISDICTION WHERE SUCH DISPOSITION WAS RENDERED, CAN IT BE CONSIDERED A CONVICTION UNDER KANSAS LAW FOR PURPOSES OF ESTABLISHING THE PRIOR CONVICTION ELEMENT UNDER K.S.A. 2001 SUPP. 2I-4204(a)(3)P
K.S.A. 2001 Supp. 21-4204(a)(3) criminalizes the possession of a firearm by a person who
“has been convicted of a felony, other than those specified in subsection (a)(4)(A), under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony, or was adjudicated as a juvenile offender because of the commission of an act which if done by an adult would constitute the commission of a felony.”
The State contends the district court erred in ruling that under K.S.A. 2001 Supp. 21-4204(a)(3), Missouri law controls whether or not Pollard had been convicted of a felony at the time he possessed the firearm in Kansas. Pollard contends the district court ruled correctly since under Missouri law his suspended imposition of sentence was not a conviction. Additionally he focuses on the term “convicted” and claims the statute requires either a conviction of a felony under Kansas law or a conviction of a crime under a law of another jurisdiction.
Interpretation of a statute presents a question of law and the Supreme Court’s scope of review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P. 2d 1016 (1998).
The parties agree that under Missouri law, as set forth in Yale v. City of Independence, 846 S.W.2d 193, 196 (Mo. 1993), the disposition of “suspended imposition of sentence” does not constitute a conviction as it is not a final judgment. From the discussion in Yale, it appears this disposition is a lenient alternative whereby, upon successful completion of the probationary period, the official records of the offense are closed pursuant to Mo. Rev. Stat. § 610.105 (2000). Interestingly, Missouri has a criminal possession of a firearm statute similar to that of Kansas except that it applies to possession within 5 years of a plea of guilty or conviction of a felony. Mo. Rev. Stat. § 571.070 (2000). Had Pollard’s possession occurred in Missouri rather than Kansas, he clearly would have been subject to Missouri’s criminal possession statute.
The Kansas statute, K.S.A. 2001 Supp. 21-4204(a)(3), provides in pertinent part:
“(a) Criminal possession of a firearm is:
(3) possession of any firearm by a person who, within the preceding five years has been convicted of a felony . . . under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony . . . and was found not to have been in possession of a firearm at the time of the commission of the offense.”
The issue turns on whether the term “conviction” is determined by Kansas or Missouri law.
Pollard cites United States v. Solomon, 826 F. Supp. 1221 (E.D. Mo. 1993), in support of his position. In Solomon, the defendant was charged under a federal criminal possession of a firearm statute wherein a prior conviction is an element of the offense. The government tried to rely on a Missouri offense as the predicate felony. Like Pollard, defendant Solomon had pled guilty to the predicate offense, and the Missouri court suspended imposition of sentence. 826 F. Supp. at 1222.
The Solomon court held that what constitutes a conviction of the underlying crime must be determined according to the law of the jurisdiction in which the proceedings were held. After examining the law in Missouri, including the Yale decision, the Solomon court concluded that under Missouri law, regardless of the determination of guilt, a suspended imposition of sentence does not result in a “conviction” for purposes of the equivalent federal criminal in possession statute. Since the government could not prove the first element of the offense, i.e., that the defendant had previously been convicted of a felony, the Solomon court dismissed the case. 826 F. Supp. at 1222-24. Under the rule in Solomon, Missouri law would apply and, thus, Pollard did not have a prior conviction at the time he possessed the weapon in Kansas.
However, there is a critical distinction between Solomon and the case before us. The statute at issue in the federal case contains a choice of law clause, whereas our statute does not. 826 F. Supp. at 1223-24 (quoting 18 U.S.C. § 921[a][20][2000]); and K.S.A. 2001 Supp. 21-4204(a)(3). The choice of law clause was added to the federal gun control statutes in 1986. United States v. Pennon, 816 F.2d 527, 528 (10th Cir. 1987). The relevant portion of the clause states: “What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 921(a)(20)(2000).
Before Congress amended the statute requiring federal courts to apply the law of the jurisdiction where the proceedings took place, “a ‘conviction’ is deemed to have occurred upon a guilty plea or finding of guilt by the court, regardless of whether the person is considered to have been convicted under State law.” 816 F. 2d at 529 (citing 132 Cong. Rec. §5354 [daily ed. May 6, 1986]); accord United States v. Benson, 605 F. 2d 1093 (9th Cir. 1979). Prior to the choice of law amendment, allowing federal law to control the term conviction “[made] for desirable national uniformity unaffected by varying state laws, procedures, and definitions of ‘conviction.’ ” Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 112, 74 L. Ed. 2d 845, 103 S.Ct. 986(1983) (superceded by statute as stated in Pennon, 816 F.2d at 529). Federal courts assumed that when a federal statute did not specify whether state or federal law should be applied to define the term conviction, federal law controlled the definition absent clear language to the contrary since Congress did not intend to make the application of federal law dependant on state law. See United States v. Ortega, 150 F.3d 937, 948 (8th Cir. 1998) cert. denied 525 U.S. 1087 (1999) (concluding that probation and a suspended imposition of sentence rendered under Missouri law is a conviction under federal law for purposes of a federal punishment enhancement statute since Congress did not clearly express a contrary intent within that statute that state law should control).
Pollard’s reliance on Solomon is therefore misplaced. Solomon supports the proposition that, in the absence of a choice of law clause mandating application of the law of the state where the predicate offense occurred, then the law where the possession occurred is controlling.
Pollard further contends the language of K.S.A. 2001 Supp. 21-4204(a)(3) is clear and that it “requires either a conviction of a felony under Kansas law or conviction of a crime under the law of another jurisdiction.” When construing criminal statutes, it is well settled that such statutes must be strictly construed in favor of the accused. Any reasonable doubt about meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative de sign and intent. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
When interpreting a statute, if a literal reading would “ ‘contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law.’ [Citation omitted.]” State v. Hankins, 19 Kan. App. 2d 1036, 1045, 880 P.2d 271 (1994).
If the statute were interpreted to require a foreign jurisdiction’s definition of conviction, the interest in protecting the public would be undermined. Essentially, if such a construction controlled the outcome of a particular case, it would, as here, create an unintended gap in our statutory scheme designed to protect the public safety. Under such interpretation, as demonstrated by the facts herein, a person who pleads guilty, admits to committing a crime, and receives a suspended imposition of sentence in Missouri, can come to Kansas and possess a weapon without violating our criminal in possession of a weapon statute, notwithstanding that he or she would be prohibited from doing so under his or her probation terms and Missouri law, which as previously discussed, includes persons who have entered a plea of guilty.
Furthermore, a person who commits the predicate offense in Kansas, pleads guilty, receives probation, and possesses a weapon, suffers more severe consequences than their counterpart who commits the predicate offense in Missouri. This is not a logical result. It is more logical to conclude the legislature intended to treat all persons coming before Kansas courts the same in order to address the problem of keeping weapons from certain felons and to advance the policy interest of protecting the public. Compare State v. Allen, 28 Kan. App. 2d 784, 793, 20 P.3d 747 (2001) (rejecting the notion that geography alone should confer sentencing benefits upon a defendant); State v. Chronister, 21 Kan. App. 2d 589, 593, 903 P.2d 1345 (1995) (illogical to provide sentencing benefit merely because crime occurred in one Kansas county rather than in another county or in another state or federal jurisdiction); and State v. Aleman, 16 Kan. App. 2d 784, 790, 830 P.2d 64, rev. denied 251 Kan. 940 (1992) (rejecting an argument where construing a statute would result in more severe consequences for persons who commit additional crimes in Kansas while on probation or parole from a Kansas conviction than counterparts who have been released on probation or parole in other states).
Under the district court’s decision, Pollard evades prosecution under the criminal possession of a firearm statute merely because of where he committed the qualifying predicate offense.
We conclude Kansas law should apply. The question then becomes whether or not Pollard had the equivalent of a conviction at the time he is alleged to have possessed the firearm in Kansas. Three lines of reasoning lead to the conclusion this question should be answered in the affirmative: (1) the legal definition of conviction under statute and case law; (2) the procedural posture of Pollard’s predicate felony, and; (3) the construction of the term “conviction” for criminal history scoring purposes. Each will be discussed in turn.
First, in Kansas, by statute, the term “ ‘[c]onviction’ includes a judgment of guilt entered upon a plea of guilty.” K.S.A. 21-3110(4). Also, this court previously construed the term “conviction” in the context of K.S.A. 21-4204. See State v. Holmes, 222 Kan. 212, 563 P. 2d 480 (1977). In Holmes, the defendant pled no contest to a felony enumerated in the criminal possession of a firearm statute. After his plea was entered of record and accepted by the court, but before he was scheduled to be sentenced a month later, the defendant was caught possessing a firearm and charged with violating a similar version of the criminal possession of a firearm statute. In deciding the defendant had the status of a convicted felon at the time he possessed the firearm, the Holmes court stated: “It is the adjudication of guilt not the imposition of sentence which constitutes a ‘conviction’ within the meaning of [K.S.A. 21-4204].” 222 Kan. at 213.
Holmes differs from Pollard’s case because the defendant in Holmes committed the offense alleged as the prior conviction for the criminal possession statute in Kansas, not in Missouri. In Pollard’s case, the journal entry clearly indicates that the Missouri court found him guilty and entered a judgment of guilt against him. The document is entitled “Judgment” and parenthetically notes it is for a guilty plea involving probation and a suspended imposition of sentence. The document states the court “adjudged that [Pollard] having been found guilty upon a plea of guilty entered on 7/14/99, of the offense(s) of Attempted Burglary - First Degree . . . is guiliyofsaidoffense(s).” Therefore, under K.S.A. 21-3110(4) and Holmes, Pollard, at least constructively, held a prior conviction under Kansas law at the time he possessed the firearm in Kansas.
Second, in Kansas, there are separate procedural definitions for “suspension of sentence” and “probation.” See K.S.A. 21-4602(b) and (c). Probation is a procedure whereby a defendant, after being found guilty of a crime, is released by the court after imposition of sentence, without imprisonment. The definition of probation and K.S.A. 21-4603 make it clear that probation in no way actually affects the sentence. The final judgment in a criminal case is the sentence and, by placing the defendant on probation, the trial court does not affect the finality of the judgment. See State v. Dubish, 236 Kan. 848, 851, 696 P.2d 969 (1985). Since probation follows a valid conviction, Kansas procedures establish that Pollard would have had a prior conviction.
Third, if Pollard’s offense in Missouri was being scored for criminal history purposes in Kansas, under the reasoning in three recent decisions by our Court of Appeals, it would be counted as a conviction. These cases applied Kansas law and scored various types of deferred adjudications rendered by foreign jurisdictions as convictions. See State v. Presha, 27 Kan. App. 2d 645, 649, 8 P.3d 14, rev. denied 269 Kan. 939 (2000) (decision to include in criminal history a Florida juvenile offense turns on whether under Kansas law the defendant would have been deemed to have been adjudicated; “[Florida] statutes do not prevent Kansas from including the out-of-state juvenile adjudications in a defendant’s criminal history score”); see also State v. Hodgden, 29 Kan. App. 2d 36, Syl. ¶ 6, 25 P.3d 138 (2001), rev. denied 271 Kan. 1040 (2001) (decision to include in criminal history a judgment of conviction later set aside under Alaska law must be resolved under Kansas law and is therefore included); State v. Macias, 30 Kan. App. 2d 79, 39 P.3d 85 (2002) (decision to include in criminal history adjudications deferred under Texas procedure turns on whether appellate court is satisfied that a defendant’s factual guilt was established in the foreign state).
In the last of these cases, the Court of Appeals expressed that our sentencing guidelines seek to inhibit a defendant’s refusal to renounce criminal behavior. Therefore, what matters is “whether the foreign state concluded the defendant did the crime[], not whether he or she ultimately had to do the time.” 30 Kan. App. 2d at 83. The Macias court further stated: “No matter what lenience another state may wish to show, once we are satisfied that a defendant’s factual guilt was established in a foreign state, that prior crime will count in Kansas.” 30 Kan. App. 2d at 83. If the reasoning expressed by our Court of Appeals in criminal history cases is extended to cases where a conviction is an element of the crime, Pollard’s Missouri offense would count as a conviction since the Missouri court established his factual guilt.
The journal entiy of the Missouri judgment states Pollard was found guilty of the felony upon his plea of guilty. A person who pleads guilty to one of the enumerated predicate felonies admits to actions the Kansas Legislature has deemed to render that person unfit to possess a firearm. We conclude that, applying Kansas law, the Missouri proceeding is the equivalent of a conviction of the predicate felony under K.S.A. 2001 Supp. 21-4204(a)(3), and the district court erred in dismissing the complaint herein.
It should be noted that the alleged firearm possession in Kansas occurred within Pollard’s 2-year probationary period for the Missouri felony. Our decision is limited to those facts and does not decide if the result would be the same if the Kansas offense had occurred after the expiration of the 2-year period.
The judgment is reversed and the case is remanded for further proceedings. | [
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|
The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal from the judgment of the district court in a breach of contract action. The defendant, Empire Candle, Inc., (Empire) appeals from a judgment of $1,200,000 entered in favor of the plaintiff, Empire Manufacturing Company (Misc.er).
Empire argues on appeal that the district court erred: (1) in awarding Misc.er $1,200,000 in damages; (2) in concluding that Empire committed an anticipatory breach of contract; and (3) in granting, the temporary restraining order.
The parties tried this case to the district court, which took the matter under advisement and later issued a journal entiy/memo randum decision. The journal entry contains findings of fact in numbered paragraphs, which Empire has not appealed from. Thus, the trial court’s determinations of fact are final and conclusive. Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999).
The district court’s findings of fact, with the names we are calling the parties substituted for the terms, plaintiffs and defendant, are as follows:
‘T. Plaintiff Kent Misc.er was the owner of a company known as Empire Manufacturing Company from August of 1991 to February of 1997. The company engaged in the manufacturing and sale of candles and related products.
“2. On February 28,1997, Misc.er sold the assets of his company to defendant [Empire Candle] which was a wholly owned subsidiary of a company called Diamond Brands Incorporated, for approximately $26,000,000. Part of the assets included inventory worth approximately $7,500,000 half of which consisted of raw materials and half of finished goods.
“3. The sales contract contained the following clause which is the subject of the dispute in this case:
T0.03 Obsolete Inventory; Disposal. If, on the first anniversary of the Closing Date, there remains any Inventory which also existed on the Closing Date, then buyer must, within 10 business days of that first anniversary, determine the book value of that remaining Inventory and deliver a written copy of that determination (including a reasonable amount of detail to support that determination) to Seller and Shareholder. Within 5 days of Seller’s and shareholder’s receipt of that written determination, Seller and Shareholder, jointly and severally, must pay to Buyer the book value of that remaining Inventory. Buyer must dispose of that remaining Inventory in accordance with the past practices of Seller regarding the disposal of obsolete or slow-moving Inventory. Each month following the first anniversary of the Closing Date until all of the remaining Inventory has been disposed of, Buyer must remit to Seller and Shareholder any consideration received by Buyer from the disposal of that Inventory, less Buyer’s direct cost of such disposal. In the event Buyer’s direct cost of disposal exceeds the amount of consideration received by Buyer for the disposal of the Inventory, Seller and Shareholder, jointly and severally, must promptly remit an amount equal to such excess. Buyer agrees to use all reasonable efforts during the 12-month period following the Closing Date to continue marketing all inventory items which buyer purchased from Seller if those types of items were sold by Seller during 1996. Buyer will also use all reasonable efforts to sell (provided the items are salable) those inventory items which Buyer purchased from Seller before selling any products which are produced after the Closing Date and which are exactly the same types of products as the existing inventory.’
“4. The uncontradicted evidence of Misc.er establishes clearly what their past practices consisted of regarding the disposal of inventory more than one year old. They would continue to market product at national shows and sales meetings at a discount and to solicit orders for which it would convert raw materials into finished goods and sell them at reduced price. It rarely if ever sold raw materials by themselves.
“5. Misc.er almost always recouped its cost of the old inventory by engaging in the practices above. Only very rarely did it dispose of this inventory at below its cost. Occasionally, it received more tiran its cost.
“6. Shortly after the one year anniversary date of the sale, Empire sent a letter to Misc.er claiming drat it had inventory (‘Misc.er inventory’) on hand unsold after one year from die date of sale with a book value of approximately $1,800,000.00. This gready exceeded any amount plaintiffs ever had on hand at the end of a year during due time he operated the business. At the end of 1995, plaintiff had on hand inventory more than two years old of a value of $70,000.00. At die end of 1996, the value of such was $150,000.00.
“7. Plaintiffs disputed the amount of unsold inventory and the parties agreed to arbitrate. The arbitrators found that the book value of the unsold inventory amounted to $1,329,653.00. They awarded this amount to Empire plus costs, interest, and attorney fees.
“8. Misc.er paid die foregoing amounts to Empire.
“9. Empire made only one payment to Misc.er for disposal of inventory that remained on hand after die one year anniversary date of the contract. That occurred in October, 1999, in the amount of $28,430. This was over one and a half years after the first anniversary date of the contract.
“10. About this time Empire decided to exit the candle business. In connection with this decision it entered into a contract with one Tom Mastaw to liquidate die ‘Misc.er inventory’ by means of an auction. Empire decided on die auction at this time partially because the lease at the warehouse where die inventory was being stored was about to expire and die approaching holidays were thought to be favorable for candle sales.
“11. Before Empire decided on the auction, it discussed with Mastaw the obtaining of bids from potential buyers of the inventory. It only gave Mastaw five days to obtain bids for the entire ‘Misc.er inventory.’ Mastaw would have utilized other mediods to dispose of the inventory had he been given more time. Representatives of Empire told Mastaw diat the inventory had a value of $1,300,000.00. Misc.er told Mastaw that it had a value of $1,200,000.00.
“12. Prior to die sale of the business to Empire, Misc.er had never disposed of or sold older inventory by means of an auction. Nor had Misc.er ever engaged the services of anyone to liquidate older inventory in one bulk sale.
“13. On November 5,1999, Misc.er filed this action and obtained a temporary restraining order stopping the auction.
“14. Prior to the scheduled auction, Empire had decided to sell its assets. It completed the sale except for tire ‘Misc.er inventory’ in December 1999 to a company by the name of Empire Candle Manufacturing, L.L.C.
“15. To the whatever extent Empire exists today, its president and CEO is Naresh Nakra, the president and CEO of Diamond Brands, Inc. There are no other employees.
“16. In January, 1999, Empire had approximately one hundred employees. About eighty of these worked in manufacturing. The sales force consisted of three or four people plus fourteen or fifteen employees of Diamond Brands, Inc.
“17. Empire has no manufacturing capability at the present time and no longer engages in any business of any land.
“18. Diamond Brands, Inc. has no capability on its own to convert any of the raw materials in the ‘Misc.er inventory into finished goods. In order to accomplish this Empire would have to contract with some other entity and pay for the manufacturing.
“19. There was some confusion as to what constituted the ‘Misc.er inventory’ after Empire sold its assets to Empire Candle Manufacturing L.L.C. The latter [inadvertently] co-mingled some of it with what it had purchased from Empire and then converted it to finished product and sold it.
“20. It appears that Empire disposed of millions of dollars of the inventory that it purchased from Misc.er. The record does not clearly reflect why it was not able to dispose of the amount now in question particularly in light of Empire’s argument that it still is able to dispose of the ‘Misc.er inventory’ in accord with Misc.er’s past practices.”
The district court concluded as a matter of law that Empire committed an anticipatoiy and partial breach of the contract by selling its assets, except the Misc.er inventory, in December 1999 to a company called Empire Candle Manufacturing, L.LC. After the sale of its assets, Empire had no manufacturing capability and no longer engaged in business of any kind. Empire’s parent company, Diamond Brands, Inc., had no capability to convert any of the raw materials in the Misc.er inventory into finished goods.
The district court concluded, in these circumstances, that •Empire would “incur more direct costs of inventory disposal than if it retained its own manufacturing capability.” The district court further concluded that, after the sale of its assets, Empire was not in a position to dispose of the Misc.er inventory “in a manner in which [Misc.er] will realize the type of recovery that resulted from ‘the past practices of [Misc.er] regarding the disposal of obsolete or slow-moving inventory.’ ”
The district court figured the amount of damages suffered by Misc.er on account of the breach as $1,200,000. The district court’s damages computation centers on an approximation of the book value, which was based on several sources. (1) The book value of the Misc.er inventoiy as determined by the August 1999 arbitrator s award was $1,329,653. Between the arbitration award and the time of the breach, Empire paid one remittance of $28,430 to Misc.er. (2) Empire told the auctioneer that the inventory had a value of $1,300,000. (3) Misc.er told him it had a value of $1,200,000. The district court’s awarding the estimated book value to Misc.er as the amount of damages resulting from the breach was based on Misc.er’s uncontroverted evidence that, during the time Misc.er operated the business, it almost always recovered its cost, i.e., book value, when it disposed of old inventory, sometimes by recovering a litde more and sometimes a little less. By the terms of the agreement, Empire was required to dispose of old inventoiy in accordance with Misc.er’s past practices. The district court’s assumption was that Empire, using Misc.er’s methods, ought to have recovered near book value. But for the breach, that recovery less direct costs of disposal would have been remitted to Misc.er. Hence, according to the district court, Misc.er suffered a financial loss of $1,200,000 as a result of the breach.
We review the district court’s decision in this case to determine whether its findings of fact are sufficient to support its conclusions of law, which involves a question of law based on given facts. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 128, 928 P. 2d 73 (1996). Our review of questions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
The choice-of-law provision in the agreement at issue provides that “[a]ll questions concerning the validity, operation, enforceability, interpretation, construction, and effect of this Agreement” are governed by Minnesota law. The general rule, and the Minnesota rule, governing damages in a breach of contract action is that the damage award should be a monetary amount sufficient to place the plaintiff in the same situation as if the contract had been performed. Christenson v. Milde, 402 N.W.2d 610, 613 (Minn. App. 1987). Under the terms of the agreement between Misc.er and Empire, Misc.er was to pay book value of Misc.er inventory remaining after one year. Misc.er paid $1,329,653. Empire was to continue disposing of the Misc.er inventory according to Misemer past practices and remit the amounts it recovered less direct costs of disposal. Empire remitted $28,430 recovered from the disposal of some remaining Misc.er inventory. Misc.er was out of pocket $1,301,223. On the basis of the evidence, the district court awarded Misc.er $1,200,000.
Empire first argues that there was insufficient evidence to support the damages award. Empire cites several loss-of-profit cases for the well-known sister principles that contract damages must be shown with a reasonable degree of exactness and that speculative damages are not recoverable. Cardinal Consulting Co. v. Circo Resorts, 297 N.W.2d 260, 266-67 (Minn. 1980); Leoni v. Bemis Co., Inc., 255 N.W.2d 824, 826 (Minn. 1977). The cases he cites are Minnesota cases, in keeping with the choice-of-law provision in the agreement. The district court considered the circumstances of this case to be analogous to loss of profits and cited a Kansas loss-of-profit case on assessing damages, Vickers v. Wichita State University, 213 Kan. 614, 518 P.2d 512 (1974). The Minnesota and Kansas cases are not in conflict on the basic principle that there must be reasonable certainty in proof of loss. Absolute certainty is not required. In Cardinal Consulting, the Minnesota court stated that lost profit damages may be recovered where
“their amount is shown with a reasonable degree of certainty and exactness. This means that the nature of the business or venture upon which the anticipated profits are claimed must be such as to support an inference of definite profits grounded upon a reasonably sure basis of facts. . . . This rule does not call for absolute certainty.” 297 N.W.2d at 266.
In Leoni, the Minnesota court approved an award of damages for loss of future profits of a new business in spite of its general rule that such loss would be too speculative. The Minnesota court stated: “This general rule derives from the fact that, lacking a history of profits, new businesses rarely have evidence upon which an award of damages may be based with the requisite degree of certainty. McCormick, Damages, § 29, p. 107.” 255 N.W.2d at 826.
In the present case, there was evidence of Misc.er s history of, on average, recovering book value by sometimes recovering a little less and sometimes recovering a little more than book value when it disposed of old inventory. This evidence establishes Misc.er s damages to a reasonable degree of certainty.
On this point, Empire also cites Faust v. Parrott, 270 N.W.2d 117 (Minn. 1978). Although superficially similar to the present case in that both involve partial breaches of asset purchase agreements, Faust differs in material facts. Faust purchased the business assets and goodwill of a salvage business; Parrott contractually promised not to compete within 100 miles. A jury found that Parrott breached the covenant not to compete. The measure of damages was profits lost by Faust as a direct result of Parrott’s competitive activities. Under these facts, Faust’s burden was to show that its decline in profitability was directly attributable to Parrott’s competition as opposed to being the result of factors other than Parrott’s breach.
The parallel that Empire would have the court draw with Faust is that Misc.er failed to show that without the breach it would have recovered the approximate book value of the old inventory. In Faust, there were many potential explanations for the decline in profits, but plaintiffs had not presented evidence that would rule out or even diminish the likelihood of nonbreach reasons. Under the agreement in the present case, Misc.er paid $1,329,653 to Empire for book value of the old inventory. Empire remitted only $28,430. Empire breached the agreement by selling its assets, thereby putting itself in a position where it was unable to employ Misc.er’s past practices to dispose of the remaining old inventory. Misc.er lost recovery of the book value he paid as a consequence of Empire’s breach. Causation of the loss, which lay at the heart of the court’s remand in Faust, is not an issue here.
Empire also argues that Misc.er presented no evidence on the critical damages questions regarding the aging inventory — how much value it had lost, what Empire’s costs of disposal would have been, if there was a market for the aging inventory, and whether an auction would have recovered more than disposal by Misc.er’s past practices. The premise on which Empire builds this argument is a misstatement of the district court’s decision. Empire states that it breached its contract not only by selling all its assets but also by attempting to sell the old inventory at auction. Empire’s attempt to auction the old inventory, however, was enjoined before it could become a breach of the contract. The district court concluded that Empire “committed an anticipatory and partial breach of the contract when it sold its assets to Empire Candle Manufacturing L.L.C. in December 1999.” The sale of the assets constituted a breach of the contract provision that required Empire to dispose of Misc.er inventory according to Misc.er’s past practices because the sale of the assets stripped Empire of the capability to engage in Misc.er’s past practices. The damages that Misc.er had the burden to show were those caused by Empire’s not having the capability to dispose of Misc.er inventory according to Misemer’s past practices. Accordingly, Misc.er’s evidence was of past practices and the recovery from disposal of old inventory using those practices. Misc.er had no evidence to offer regarding diminishing value or marketability of aging inventory because Misemer’s evidence of its past practices was that there was a
“need to malee sure that any of inventory that was left over at the end of the season was sold. So from the very beginning, we made sure that we moved out the inventory that was left over at the end of the season. We did that every year. With every season, we talked about it and moved that inventory out.”
Engaging in the practice of promptly disposing of old inventory, Misc.er had no old inventory in 1993 or 1994, and in 1995 “it was somewhere in the seventy thousand dollar range and in [19]96 it was $147,000.”
Misc.er had the burden of proving its damages. It did so with evidence of the amount it paid, according to the agreement, out of pocket for book value of the Misc.er inventory and evidence that on average it recovered approximately book value when it disposed of old inventory. A reduction of damages asserted by the defendant, like mitigation of damages in cases of breach of contract, is for the defendant to show. 22 Am Jur. 2d Damages § 908, p. 930, citing Miller v. Kruggel, 165 Kan. 435, 195 P.2d 597 (1948). Evidence that the value of Misc.er inventory was reduced due to age, costs of disposal, marketability, and whether an auction would have recovered more than disposal by Misc.er’s past practices was Empire’s responsibility. In any event, there was evidence on those subjects, most of it introduced by Misc.er.
Thomas Mastaw, who had been hired by Empire to auction the Misc.er inventory, was called as a witness by Misc.er. He testified that he had been told that the inventory was worth $750,000. He expressed the opinion that auction proceeds would have been between $350,000 and $450,000. He believed that an auction would gamer as much as sale of the inventory. He stated no basis for his belief.
Drummond Crews also was a plaintiffs’ witness. He was hired by Kent Misc.er in August 1991 as national sales manager for Empire Manufacturing. Within a few months, Crews became president of the company. He remained in that position until February 1997, when the assets of the business were purchased by Empire Candle. He continued working as president of the successor company, Empire Candle. He no longer had full say about operations, and he did not agree with some of the changes instituted by new management in manufacturing and marketing. Crews believed that time proved him right. In December 1999, Crews purchased the assets of Empire Candle and became the president of Empire Candle Manufacturing, L.L.C. Crews excluded the Misc.er inventoiy from the assets he purchased. He paid approximately 15 cents on a dollar for the inventory he purchased from Empire, “a ridiculously low low price.” He described the Empire inventory as being similar to the Misc.er inventoiy. The Misc.er inventoiy was excepted from the noncompete clause of the agreement.
Crews testified that when he worked for Misc.er, they disposed of 1-or 2-year-old inventoiy either by creating a special item and pricing it to sell or displaying items along with regular products at trade shows. The aim was to recover cost and “[m]ost of the time [they were] pretty successful.” They did not use inventoiy liquidators or salvagers or auctioneers.
Crews testified that in August 1997 he was instructed to dispose of new inventoiy before getting into the Misc.er inventoiy. He also reported a subsequent, less pointed conversation with another member of management on the same topic.
With regard to reduction of the value of the Misc.er inventory, Crews testified that inventoiy depreciates over time. He said that Misc.er’s sales force remained after Empire bought the assets and that personnel changes did not occur until early 1998. In the first year after the sale, a significant percentage of the Misc.er inventory was disposed of.
Kent Misc.er testified that the one remittance check he received from Empire was for $28,000, which was less than half the book value of the inventory that had been disposed of.
Empire also argues that Misc.er failed to show that he sustained monetary damage as a result of the breach because the evidence establishes that the proceeds of an auction would have exceeded a sale of the Misc.er inventory at the going market rate. This argument seems to be based on Crews’ testimony that he purchased Empire’s inventory for 15 cents on the dollar. He characterized the price as “ridiculously low low.” There is nothing in the evidence even to suggest that what Crews paid for Empire inventory was “the going market rate.”
Empire argues that the district court computed damages as if the breach occurred in February 1998, rather than in December 1999. The general rule is that damages are to be measured as of the date of the breach. 22 Am Jur. 2d Damages § 79, p. 92. Empire’s argument seems to be that the district court violated the general rule by awarding $1,200,000. The evidence, however, does not support the assertion that $1,200,000 would have been the amount of the damages had they been computed in Fébruaiy 1998. In February 1998, Empire claimed that the book value of the Misemer inventory was more than $1,800,000. The arbitration hearings were held in late June and early July 1999. After arbitrating the amount, Misc.er paid Empire $1,329,653.
In addition to the book value, as determined by arbitration, the district court based its damages award on “the statements of both plaintiff and defendant to the auctioneer as to the value of the Misc.er inventory and that defendant has previously paid a small amount to plaintiff for inventory disposal.” The statements of plaintiff and defendant were the subject of the district court’s finding number 11: “Representatives of defendant [Empire] told Mastaw that the inventory had a value of $1,300,000.00. Plaintiff [Misc.er] told Mastaw that it had a value of $1,200,000.00.” Empire has not challenged the district court’s finding. Because Mastaw, the auc tioneer, did not enter the picture until late October or early November 1999, we can assume that the valuations given by the parties for the Misc.er inventoiy were current at that time. The breach occurred approximately a month after the scheduled auction.
Empire argues that the district court mistakenly relied on the book value of the Misc.er inventory in computing damages without regard for depreciation. In essence, this argument is simply a rephrasing of the previous argument that damages had not been calculated as of the time of the breach. This argument, too, fails from lack of supporting evidence.
As stated in the preceding paragraph, in addition to the book value determined by arbitration in August 1999, the district court based its damages award on the parties’ valuations of the Misc.er inventory as communicated to the auctioneer, presumably in late October or early November 1999.
There was testimony by Crews that inventory generally depreciates with age. With regard specifically to the condition of the Misc.er inventory, Empire refers the court to this question to Crews and his answer: “Q. I believe you testified in your deposition you would expect significant deterioration to the missing inventory by November of 1999? A. Yes.” Empire, in the statement of facts in its brief, makes Crews’ “expectation” out to be an established fact — “By November 1999, the inventoiy was almost three years old, had depreciated in value, and its physical condition had significantly deteriorated.” Crews’ testimony, however, was nothing more than conjecture. Empire urges the court to accept Crews’ testimony that he paid 15 cents on the dollar for Empire’s inventory as establishing the value of the Misc.er inventory. Determining the value of Misc.er inventoiy to be 15% of book value would not be a reasonable inference from the “ridiculously low low” price Crews paid. The circumstances in which that price was set were unique in that the inventory sale was part of Crews’ agreement to purchase Empire’s assets, and Crews’ characterization of the price seems to indicate that he regarded it as bearing no relation to reasonable value. Crews’ excluding the Misc.er inventoiy from the purchase cannot be construed as evidence of its lack of value because there is no evidence of the reason for the exclusion, which likely was due to its being the subject of this dispute.
Empire urges the court to consider the amount of its postarbitration remittance as evidence of the depreciated value of the Misemer inventoiy. Misc.er testified that he received a check in approximately the amount of $28,000. He believed that the book value on the inventoiy that had been disposed of was “in the 60-some thousand dollar range.”
We do not know how much of the difference between the approximately $60,000 book value and the $28,000 remittance was accounted for by Empire’s direct costs of disposal. This evidence of the difference between book value and remittance from one sale of a small portion of the inventory seems to be the best evidence of depreciated inventory, and it is inexact.and amounts to very little.
Empire also urges the court to consider the $350,000-to-$450,000 estimate of what the auction revenues would have been if it had not been enjoined. The estimate is of auction revenues. It is not an estimate of the depreciated value of the inventory. Nor is it an estimate of the revenue that could be generated by disposing of the inventoiy according to Misc.er’s past practices. Even if an estimate of the auction revenues were material to Misc.er’s damages, the $350,000-to-$450,000 estimate would not be reliable evidence for valuing the Misc.er inventory. Misc.er testified that Mastaw told him Empire hired him to auction $1,300,000 worth of merchandise, but the inventory Empire turned over to Mastaw was about half that amount.
It appears that the damages award put Misc.er in a somewhat better situation than he would have been in if the contract had been performed. The damages award, however, accurately reflects the evidence. Misc.er’s damage award was $1,200,000. Misc.er’s evidence showed that he was out of pocket $1,301,223, which was the amount of the arbitration award he paid to Empire less Empire’s $28,430 remittance. Misc.er’s evidence showed that, in its experience of disposing of old inventory, Misc.er generally recovered cost of the inventoiy. The measure of the damages was how much of his out-of-pocket amount he would have recovered if Empire had disposed of the remaining Misc.er inventoiy ac cording to Misc.er’s past practices. The one small remittance, which did not show actual book value of the inventory or costs of disposal, is not sufficient to support a reduction in established damages. The evidence that would have established to a reasonable degree of certainty how much of his out-of-pocket amount Misc. mer would have recovered if the contract had been performed was evidence that Empire should have presented. The remaining Misemer inventory was under Empire’s control, disposal of it was up to Empire, and Empire’s costs of disposal depended on its methods.
In Peters v. Mutual Ben. Life Ins. Co., 420 N.W.2d 908, 916 (Minn. App. 1988), the court stated: “The trial court has broad discretion in determining whether to grant a new trial for excessive damages.” The trial court in Peters “expressly found that an award of $365,000 for a business generating $114,000 in profits was fully supported by the evidence and was not excessive.” 420 N.W.2d at 916. The award was upheld on appeal because the trial court’s “finding was not a clear abuse of discretion.” 420 N.W.2d at 916. Here, the damages award was supported by the evidence.
The final argument that Empire makes with regard to the damages award is that the district court failed to recognize the effect of the arbitration award in calculating damages. Empire argues it constitutes res judicata, collateral estoppel, or issue preclusion. There is no merit to the argument because the premises on which it is based are faulty. Empire misstates what the district court determined constituted the breach. Empire asserts that “[t]he district court’s decision focuses on events that took place prior to March 1, 1999, as a springboard for determining that Empire breached the Agreement by not disposing of the Misc.er inventory in accordance with Misc.er’s prior practices.” Contraiy to this assertion, the district court found that Empire breached the'agreement in December 1999 by selling its assets, thereby placing itself in a position where it was incapable of disposing of the Misc.er inventory in accordance with Misc.er’s prior practices. Empire also misstates the scope of the arbitration decision. Empire asserts that the arbitration panel determined that Empire followed Misc.er’s prior practices for 2 years and that, after those 2 years, inventory with a book value of $1,300,000 remained unsold. The arbitration award expressly settles claims “based on any event occurring before March 1,1999.” The inventory disposal provision of the agreement had no utility until February 28, 1998, which was 1 year after the agreement was executed. Thus, the arbitration decision involved only 1 year of disposal practices. In any event, whether Empire adhered to Misc.er’s past disposal practices before it sold the assets in December 1999 is irrelevant to the question of breach. If Empire’s argument is that the district court should have reduced the damages award based on an inference based on the arbitration decision that the inventory could not be disposed of using Misc. mer’s past practices, the argument fails because the arbitration decision does not support such an inference. The arbitration decision settled accounts as of March 1, 1999, by which date Empire had by one method or another disposed of all but $1,300,000 of the original $7,500,000 Misc.er inventory.
Empire next argues that the district court erred in concluding that Empire committed an anticipatory breach of contract. We find no merit to this argument. It is based entirely on a false premise. In arguing that it did not commit the breach the district court determined, Empire misstates the nature of the breach. Empire asserts that “[t]he district court judge found that Empire breached its contract because of the failure to follow Misc.er’s past practices.” In fact, the district court determined that the breach occurred when Empire sold its assets in December 1999. Whether Empire followed Misc.er’s past practices is not an issue.
Empire’s final argument is that the district court abused its discretion in granting the temporary restraining order. The granting of injunctive relief involves the exercise of judicial discretion and will be reviewed by this court for abuse of discretion. Kansas East Conf. of the United Methodist Church v. Bethany Med. Ctr., 266 Kan. 366, 377-78, 969 P.2d 859 (1998).
The district court’s Temporary Restraining Order is dated November 5, 1999. It contains nine “specific findings”:
“1. That the defendant has indicated that it intends to dispose of certain inventory by auction on November 6, 1999 at 10:00 a.m.
“2. That the inventory that is to be disposed of includes inventory that is the subject of an agreement between the plaintiffs and the defendant.
“3. That under die terms of the agreement between the parties defendant is to dispose of unsold inventory in accordance with past practices of the plaintiffs.
“4. Plaintiffs in their verified petition have indicated that never in the history of the company has inventory been disposed of by auction.
“5. Plaintiffs in their verified petition have represented their belief that if the property is disposed of by auction the amount received will not be adequate.
“6. Plaintiffs in their verified petition have represented that to the present date defendant has not consulted with the plaintiffs regarding its intention to dispose of the property that is the subject of the agreement by auction.
“7. The Court is of the view that the defendant should be restrained from disposing of the inventory by auction until such time as the Court has had an opportunity to consider dre testimony of the parties regarding disposal of the inventory through auction.
“8. The Court finds that unless the defendant is restrained from disposing of certain inventory by auction that there is substantial likelihood that the plaintiffs will sustain irreparable harm.
“9. Accordingly, tire Court finds that in order to maintain the status quo it should enter its order restraining the defendant from disposing of the inventory that is subject to section 10.3 of the agreement between the parties by auction.”
Based on the findings, the district court temporarily restrained Empire from disposing of the Misc.er inventory by auction. In the order, the district court scheduled a hearing on the Application for Temporary Injunction for November 17, 1999.
Empire argues that Misc.er had a legal remedy in damages for breach of contract and therefore would not have suffered irreparable harm if the November 6 auction had taken place. Empire cites Sampel v. Balbernie, 20 Kan. App. 2d 527, 530-31, 889 P.2d 804 (1995), where the court enumerated criteria for obtaining injunctive relief:
“Injunctive relief is an equitable remedy. To obtain injunctive relief from a prospective injury, the movant must show: (l) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest.”
Here, Misc.er sought injunctive relief in order to prevent Empire from breaching the contract by disposing of the inventory by auction. Misc.er’s petition for relief alleged that disposal of the inventory by auction would constitute a breach of the agreement.
Monetary damages for the breach of contract would have been available to Misc.er if the district court had not enjoined the auction. The district court’s action, therefore, was taken without regard to the criteria set out in Sampel. This court, as well as the Court of Appeals, has stated the necessity for a party seeking injunctive relief to show that an action at law will not provide adequate remedy. Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716 (1990), and 266 Kan. 366, 382-83. Here, Misemer would have had an adequate remedy at law for breach of contract.
The question is whether the district court’s granting injunctive relief in order to prevent a breach of contract constitutes an abuse of the district court’s discretion. “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Simon v. Simon, 260 Kan. 731, Syl. ¶ 2, 924 P.2d 1255 (1996). Here, the measure of the trial court’s discretion is bounded by the above criteria. Thus, the trial court’s action in granting injunctive relief when the criteria were not satisfied is an abuse of discretion.
Without citing authority for the remedy it seeks, Empire asks this court to remand the matter to the district court for determination and award of costs it wrongfully incurred as a result of the restraining order. Empire mentions out-of-pocket expenses in setting up and advertising the auction, which was enjoined 1 day before it was scheduled to take place. Empire also asserts that the inventory now will be less valuable than it was at the time the district court prohibited the auction, and it wants to recover the loss in value. We reject Empire’s request to remand. The trial court considered those factors in determining the damages award. Further, as Misc.er points out, the injunctive relief never went beyond the temporary restraining order and Empire has not been prohibited from disposing of the Misc.er inventory by auction since shortly after the November 6 auction was cancelled. In fact, on November 17,1999, just 12 days after the restraining order was issued, the parties jointly agreed to dissolve the temporary restraining order.
The district court’s judgment on liability and damages is affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Six, J.:
This case addresses defendant William Anthony’s challenge to the duration of his postrelease supervision sentence based on his reading of State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We also raise sua sponte the issue of whether Anthony’s sentence was. an illegal sentence.
Anthony was convicted by a jury of aggravated indecent liberties with a child, a severity level 3 crime. K.S.A. 21-3504(a)(3) (lewd fondling or touching). The district court imposed a sentence of 92 months’ incarceration, to be followed by a period of postrelease supervision. The period of supervision was extended from 36 to 60 months based on the judge’s post-conviction findings. See K.S.A. 1998 Supp. 22-3717(d)(l)(C)(i), now K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i). Anthony argues that the extended period of post-release supervision constituted an unconstitutional upward durational departure. We disagree.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
DISCUSSION
Anthony does not question either his conviction or his underlying sentence of incarceration. The sole issue in his appeal is whether his constitutional rights were violated when the district court, based on “the nature of this offense,” extended his post-release supervision period. Anthony did not object to the extended postrelease period. His counsel agreed that the district court had the discretion to impose the extended period. Anthony argues for the first time on appeal that, under Gould, which followed Apprendi, his constitutional rights were violated.
Anthony’s constitutional challenge involves a question of law over which we have unlimited review. See State v. Crow, 266 Kan. 690, Syl. ¶ 2, 974 P.2d 100 (1999). Generally, “[wjhen constitutional grounds are asserted for the first time on appeal, they are not properly before [this court] for review.” State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, in Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967), we recognized exceptions to the general rule. We recently relied on the Pierce exceptions in order to address an Apprendi argument raised for the first time on appeal in Gould. We follow our reasoning in Gould and consider the extended postrelease issue here.
In Apprendi, the United States Supreme Court held: “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 juiy and proved beyond a reasonable doubt.” 530 U.S. at 490.
In Gould, we applied Apprendi to hold that the Kansas Sentencing Guidelines Act’s (KSGA) scheme for imposing upward durational departure sentences violates the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution. See 271 Kan. at 413. We said: “Under Apprendi, it does not matter how the required finding is labeled, but whether it exposes the defendant to a greater punishment than that authorized by the jury’s verdict.” 271 Kan. at 410. We noted that the district court had imposed two 68-month sentences upon Gould, going beyond the maximum sentence in the applicable grid box for each crime. Thus, Apprendi applied.
The resolution of Anthony’s claim requires our examination of the appropriate sentencing statutes. We begin by observing that postrelease supervision is mandatory. K.S.A. 2001 Supp. 22-3717(d)(1). Postrelease supervision is a component of the underlying prison sentence. An inmate has not served his or her sentence until the postrelease period is complete. K.S.A. 22-3722.
Because Anthony was convicted of aggravated indecent liberties with a child, a severity level 3 nondrug offense, he was required to serve 36 months on postrelease supervision. K.S.A. 2001 Supp. 22-3717(d)(1) mandates:
“(A) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity level 1 through 4 crimes . . . must serve 36 months, plus the amount of good time earned and retained pursuant to K.S.A. 21-4722 and amendments thereto, on postrelease supervision.”
The postrelease supervision period may be extended under certain circumstances. K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i) says, in part:
“The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A) [36 months]. . ., unless the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually violent or sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months.”
K.S.A. 2001 Supp. 22-3717(d)(2) sets forth the definition of a “sexually violent crime,” which encompasses a laundry list of offenses complete with statutory citations. Anthony’s crime of aggravated indecent liberties appears on the list and thus fits squarely within the definition of a sexually violent crime. See K.S.A. 2001 Supp. 22-3717(d)(2)(C).
Anthony contends that the district court here imposed an upward durational departure sentence by subjecting him to the extended postrelease supervision period. We agree. The statutory maximum penalty for Anthony’s crime includes a 36-month post-release period. The district court’s extension of Anthony’s post-release period from 36 to 60 months increased the penalty for his crime beyond the statutory maximum.
The question becomes whether the increased postrelease period runs afoul of the protections outlined in Apprendi and Gould. We conclude that it does not. Here, the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended post-release supervision period under K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i). In doing so, the court was not required to make an additional finding of fact beyond that made by the jury. Because the fact relied upon to extend the period of postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period imposed does not violate Apprendi or Gould.
We conclude that: (1) the district court’s “nature of the offense” basis for imposing an extended postrelease period referred to the fact that aggravated indecent liberties is statutorily defined as a sexually violent crime, (2) Anthony’s conviction of aggravated indecent liberties constituted a substantial and compelling reason to impose the postrelease supervision departure, and (3) the departure here does not violate either Apprendi or Gould.
The district court’s “nature of the offense” finding is sufficient to comply with K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i). However, the better practice for a district court in imposing a durational postrelease supervision departure under these circumstances is to state specifically and on the record the “substantial and compelling reasons to impose a departure,” i.e., that the current crime of conviction was sexually violent.
Under the facts here, the increase in Anthony’s postrelease supervision period from 36 to 60 months, supported by the juiy’s finding, was an acceptable departure.
ANTHONY’S PRISON SENTENCE
The record reflects that the offense leading to Anthony’s conviction by a jury occurred on February 19, 1999. Anthony had a criminal history score of E under the KSGA. His crime was a severity level 3. On the date of Anthony’s offense, the presumptive range in the 3-E grid box was 68-73-77 months’ imprisonment. See K.S.A. 1998 Supp. 21-4704(a). On the date of sentencing, November 17, 2000, the presumptive range in the 3-E grid box was, and remains, 82-88-92 months’ imprisonment. See K.S.A. 2001 Supp. 21-4704(a). The district court here looked to the latter range and imposed 92 months’ incarceration, the aggravated sentence in the grid box. The question we raise sua sponte is whether the length of Anthony’s sentence is dictated by the presumptive range in effect on the date of his offense or on the date of his sentencing. See K.S.A. 22-3504 (the court may correct an illegal sentence at any time).
The controlling penalty provisions are those in effect at the time the offense is committed. State v. Patterson, 257 Kan. 824, 825, 896 P.2d 1056 (1995). Where the penalty for an offense has been changed by the legislature after the offense, the penalty imposed must be under the law as it stood on the date the offense was committed. State v. Standifer, 24 Kan. App. 2d 441, 444-45, 946 P.2d 637, rev. denied 263 Kan. 890 (1997); see also State v. Downey, 27 Kan. App. 2d 350, 366, 2 P.3d 191, rev. denied 269 Kan. 936 (2000) (trial court must rely on sentencing guidelines in effect on the date of the offense). Anthony’s underlying sentence of imprisonment is vacated, and the case is remanded for resentencing according to the KSGA grid in effect on the date of his offense.
We remand for resentencing in accordance with our opinion.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Davis, J.:
Juanita Wilson sued Kansas State University and the Intercollegiate Athletic Counsel of Kansas State University, Inc., (KSU) following an incident in the defendants’ football stadium restroom where Wilson came in contact with an unknown substance on a toilet seat. The district court granted KSU’s motion for summary judgment, finding the recreational use exception of the Kansas Tort Claims Act (KTCA), K.S.A. 2001 Supp. 75-6104(o), shielded the defendants from liability for ordinary negligence. We affirm.
Wilson attended a football game at KSU’s stadium and used the restroom at the stadium. Wilson noticed nothing wet on the toilet seat before using the toilet, but felt wetness on her left buttock from the toilet after sitting. She did not try to wipe the unknown substance from her body but rather pulled her pants back up over the unknown substance. Wilson stopped to wash her hands but did not wash the unknown substance from her body before leaving the restroom. After leaving the stadium, Wilson noticed an uncomfortable burning sensation. She washed her left buttock with water when she arrived at her son’s apartment.
Later, upon arriving at her own home, Wilson examined herself and noticed that part of her skin appeared black. Wilson went to the emergency room at a hospital where the doctor ordered a nurse to wash the area.
Wilson could not identify who put the unknown substance on the toilet seat and could not say how long it had been there. No other game attendees had similar complaints. It was estimated 5,700 people use the womens’ restroom during a typical football game. The stadium staff check the restrooms six to seven times daily.
After analysis, a chemist determined that the substance had a pH factor in the range of 12. The pH is a measure of acidity or alkalinity of a solution, numerically equal to 7 for neutral and increasing with increasing alkalinity and decreasing with increasing acidity. None of the products used by the stadium staff on the toilet seats during the game had a similar pH factor.
Wilson filed a petition against KSU making the following allegations:
“6. That while in attendance at the game, the Plaintiff used one of the restrooms at the stadium. Unbeknownst to the Plaintiff there was a substance on the toilet seat in the bathroom which ultimately caused a severe bum to Plaintiff s buttocks which required significant medical treatment and has left the Plaintiff permanently scarred.
"7. The Plaintiff asserts that the Defendants were negligent in allowing a substance that could cause the severe chemical bums suffered by the Plaintiff to be left on the toilet after cleaning or were negligent in failing to use due care to prevent attendees of the game from being exposed to chemicals capable of causing severe bums while using restrooms at the game.”
The petition did not assert gross and wanton negligence. KSU denied any liability for negligence in its answer.
KSU moved for summary judgment asserting that K.S.A. 2001 Supp. 75-6104(o), the recreational use exception of the KTCA, provided immunity for ordinary negligence. KSU argued in the alternative that Wilson also failed to establish a genuine issue of material fact as to whether KSU was hable for negligence. In responding to the summary judgment motion, Wilson argued the recreational use exception does not apply to stadium restrooms. Wilson also argued that the application of the'recreational use exception violates her equal protection and due process rights. Wilson contended that a genuine issue of material fact remained as to the issue of ordinaiy negligence.
In its order granting KSU’s motion for summary judgment, the trial court noted Wilson failed to allege gross or wanton negligence and held the recreational use exception applied. The court also rejected Wilson’s constitutional arguments. The court failed to reach the issue of whether Wilson presented a genuine issue of material fact regarding ordinary negligence. Wilson appealed.
Wilson argued the trial court erred in applying the recreational use exception of the KTCA. Specifically, Wilson argued that while the football stadium might be used for recreational purposes, the restrooms are not. KSU counters by contending that because the restrooms are an integral part of the stadium — a location clearly falling under the recreational use exception — immunity should also extend to cover negligent acts taking place in the restrooms.
In Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000), we reviewed the application of the KTCA: “Under the KTCA, governmental liability is the rule and immunity is the exception. [Citation omitted.] In order to avoid liability, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions found in K.S.A. 75-6104.”
K.S.A. 2001 Supp. 75-6104(o) states:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
Whether the KTCA applies requires the interpretation of statute. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 482, 15 P.3d 338 (2000). The appellate court exercises unlimited review of questions of law.
The general application of the recreational use exception to the football stadium is not disputed. K.S.A. 2001 Supp. 75-6104, which contains the exceptions to liability, applies to governmental entities. A governmental entity is a “state or municipality.” K.S.A. 2001 Supp. 75-6102(c). “State” is defined as “any department or branch of state government, or any agency, authority, institution or other instrumentality thereof.” K.S.A. 2001 Supp. 75-6102(a). Lastly, K.S.A. 76-711(a) defines “state educational institution” to include “Kansas state university of agriculture and applied science.” The stadium was public property intended to be used for recreational purposes.
The recreational use exception clearly provides immunity for KSU’s negligent acts occurring on the football field. The issue in this case is whether the public property should be considered collectively, or if particular areas of a property should be considered separately for purposes of determining whether these areas fall within the recreational use exception.
Jackson applied the recreational use exception of the KTCA to a public school gymnasium. 268 Kan. at 321-22. Jackson considered three attacks to the application of the recreational use exception: (1) that the gymnasium was not “public property,” (2) that the gymnasium was not a “park” or a “playground” or an “open area,” and (3) that the property was not used for “recreational purposes.” 268 Kan. at 323, 326. While the Jackson court rejected each of these three arguments, the analysis of the third argument is instructive. The plaintiff argued the gymnasium was used for mandatory educational classes, not recreational purposes. In response to the plaintiff s argument, the court quoted the statute, and noted that “[t]he injury need not be the result of ‘recreation.’ ” 268 Kan. at 326. The Jackson court summarized its holding:
“The type of activity performed on the property when the injury occurs is not significant. Immunity depends on the character of the property in question, i.e., whether the property was ‘intended or permitted to be used for recreational purposes.’ [Citation omitted.] That determination is made by considering whether the property has been used for recreational purposes in the past or whether recreation has been encouraged.” 268 Kan. at 330.
The dissent in Jackson disagreed that the recreational use immunity depended “solely on the character of the property in question and not on the activity performed at any given time.” 268 Kan. at 335.
It is clear that the Jackson majority classified the property based on its intended use instead of analyzing the activity taking place at the time of the incident giving rise to the lawsuit. In the present case, the stadium was intended for recreational purposes. See 268 Kan. at 330 (adopting a definition of recreation as a refreshment of strength after toil, diversion, or play). While the restrooms independently have a nonrecreational usage, they serve no purpose but for the recreational nature of the football stadium, which attracts large numbers of people.
A recent decision of the Court of Appeals is also applicable. Tullis v. Pittsburg State Univ., 28 Kan. App. 2d 347, 16 P.3d 971 (2000), involved an actress’ accidental stabbing during a play performed in a university auditorium. On appeal, the university argued it was immune from liability for ordinary negligence under the recreational use exception. The Tullís court quoted Jackson, holding that the “determinative issue is ‘whether the property was intended or permitted to be used for recreational purposes.’ ” 28 Kan. App. 2d at 350. The court found the facts in Jackson indistinguishable because both the gymnasium in Jackson and the auditorium in Tullís involved open areas intended for recreational use.
Considering the ultimate purpose behind the property’s usage is consistent with basic rules of statutory construction:
“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.” Robinett v. The Haskell Co., 270 Kan. 95, 100, 12 P.3d 411 (2000).
KSU has the burden to show that the property was “intended ... to be used as a park, playground or open area for recreational purposes.” K.S.A. 2001 Supp. 75-6104(o).
The trial court in this case relied on Annen v. Village of McNabb, 192 Ill. App. 3d 711, 548 N.E.2d 1383 (1990). The issue in Annen was “whether a local public entity is exempt from liability in ordinary negligence to one injured in a restroom building located in a public park.” 192 Ill. App. 3d at 712. The Annen court quoted the language from its own Tort Immunity Act:
“ ‘§ 3-106. Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.’ Ill. Rev. Stat. 1987, ch. 85, par. 3-106.” 192 Ill. App. 3d at 712.
Jackson called the above language “remarkably similar” to the Kansas version. Jackson, 268 Kan. at 327. The Annen court began its analysis by noting the primary rule of statutoiy construction in Illinois is to “ascertain and effectuate the legislature’s intent.” 192 Ill. App. 3d at 713. The Annen court .resolved the issue with the following:
“A restroom facility located within a park is a part of the park. While a restroom building itself is not intended to be used for recreational purposes, it allows a park user to continue using the park without having to leave the park to use restroom facilities. This increases the usefulness of the park and advances the legislative purpose.” 192 Ill. App. 3d at 713.
The same can be said in the present case: The restrooms are part of the stadium. The restrooms allow people to continue enjoying the recreational purposes provided by the football games at the stadium without leaving. Likewise, the usefulness of the park is increased and the legislative purpose is advanced. As the trial court in this case noted, the restrooms are “an integral part of a football stadium.” To the extent the legislature intended to encourage the building of recreational facilities with K.S.A. 2001 75-6104(o), extending immunity to cover negligent acts in restrooms is consistent with the legislative intent because such extension further increases the incentive to build recreational facilities. See Jackson, 268 Kan. at 330.
. The Illinois Appellate Court in Lewis v. Jasper Co. Comm. Unit Sch. Dist., 258 Ill. App. 3d 419, 423-24, 629 N.E.2d 1227 (1994), held the Illinois recreational use exception applied to a pumphouse on a school playground:
“Plaintiff further argues that section 3-106 is limited to public property intended or permitted to be used for recreational purposes, and that the pumphouse on which plaintiff was injured had no recreational function. We disagree. The immunity provisions of section 3-106 have been held to apply to nonrecreational equipment and structures located on premises used for recreational activities. [Citations omitted.] In the case at bar, the playground was the property being used for recreational purposes, and the pumphouse was part of the property in question.”
The Supreme Court of Wyoming in DiVenere v. University of Wyoming, 811 P.2d 273, 274 (Wyo. 1991), considered an action under the Wyoming Governmental Claims Act alleging- an injury resulting from a slip and fall on “an icy patch on the concourse leading to the upper deck of the University of Wyoming’s football stadium.” The Wyoming statute waived immunity for negligent acts in the operation of recreation areas, but contained an exception for sidewalks. On appeal, the university argued (1) the waiver of immunity did not mention ramps or concourses and (2) the sidewalk exception applied. First, the court considered the definition of “recreation” and concluded the football stadium is a recreation area as contemplated by the Wyoming statute. Second, the court considered and rejected the university’s second argument that the sidewalk exception providing immunity applied. The court, in part, relied on the fact that the concourse was an “integral part of the recreation area itself.” 811 P.2d at 276. The same would be said of the restrooms in our case.
In our case, the restrooms are not “incidentally” connected to the stadium but rather necessarily connected to the stadium by plan. A facility servicing large numbers of people must include restrooms. Likewise, the recreational use immunity extends to the restrooms because the restrooms are necessarily connected to the property.
Wilson argues that KSU has the burden to show the applicability of the recreational use exception and because there are no cases extending immunity to restrooms, KSU has failed to carry this burden. We rejected this argument in Jackson, finding “[t]he fact that there have been no cases before the appellate courts of Kansas which have applied K.S.A. 75-6104(o) to the interior of a school does not prevent us from doing so now.” 268 Kan. at 325.
Our decision here is also consistent with Nichols v. U.S.D. No. 400, 246 Kan. 93, 785 P.2d 986 (1990). The plaintiff in Nichols was injured after he stumbled while running from a school football field through a “grassy swale or waterway which provided drainage from the high school playground” on his way to the locker room. 246 Kan. at 93-94. The plaintiff s argument against application of the recreational use exception in Nichols was that the injury resulted from negligent supervision, not from a condition of the premises. The court rejected this argument, finding the plain language of the statute covers any “use” of the property, whether supervised or unsupervised. The court then addressed an argument submitted by an amicus curiae party that “immunity is available to the school district only when the injury is a result of the condition of the public property used for recreational purposes.” 246 Kan. at 96. The court rejected this argument:
“The language of K.S.A. 75-6104(n) is plain and unambiguous. If the legislature had intended to limit immunity to those situations in which an injury on public property, used for recreational purposes, was caused by conditions on the premises, it would have expressly so stated.” 246 Kan. at 97.
The court’s citation of K.S.A. 75-6104(n) refers to language which is now codified at K.S.A. 2001 Supp. 75-6104(o). The plaintiff in Nichols could have made the same argument as in the present case, i.e., the recreational use exception does not apply to the “grassy swale or waterway” because it was not intended for recreation. Jackson summarized the Nichols holding as follows: “School districts are not liable for injuries which are the result of ordinary negligence and which occur on or near a football playing field.” (Emphasis added.) 268 Kan. at 324. Arguably, no recreation takes place near a football field, yet the property is collectively intended for recreational purposes.
The plain language of the recreational use exception reaches the restrooms, not because of what the statutory language provides, but because of what the language does not provide. K.S.A. 2001 Supp. 75-6104(o) contains the language “any public property intended or permitted to be used as a park, playground, or open area for recreational purposes,” and is not limited to “any portion of public property utilized for recreational activities.” Further, the use of “any” to modify “public property” shows an intent on the part of the legislature to establish a broad application of recreational use immunity. ,
Next, Wilson argued the application of K.S.A. 2001 Supp. 75-6104(o) to the facts of this case violates her equal protection rights under the United States and Kansas Constitutions. This court recently reviewed and rejected an equal protection challenge to K.S.A. 2001 Supp. 75-6104(o) in Barrett v. U.S.D. No. 259, 272 Kan. 250, 32 P.3d 1156 (2001). In Barrett, we held the legislature had a legitimate purpose for the disparate treatment caused by the recreational use exception. Further, we found the disparate treatment under the.recreational use exception was rationally related to the legitimate purpose. This present case is indistinguishable, and based on the principles in Barrett we reject Wilson’s equal protection argument.
■ Because we affirm the district court’s summary judgment motion based on the recreational use exception, we need not address KSU’s additional argument that Wilson has failed to establish sufficient facts of ordinary negligence.
Affirmed.
■Allegrucci, J., concurs in the result. | [
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The opinion of the court was delivered by
Lockett, J.:
Pursuant to K.S.A. 21-4608(f)(5), petitioner Shelia' Hudson received no credit for time spent on parole on the aggregate sentence imposed when she committed a new offense while on parole. The district court granted relief under K.S.A. 60-1507, finding that the denial of credit was a violation of the United States Constitution’s prohibition against double jeopardy and its require ment of due process and that K.S.A. 21-4608(f)(5) conflicts with K.S.A. 22-3722.
Our question is whether K.S.A. 21-4608(f)(5) is unconstitutional as a violation of the Fifth Amendment guarantee against double jeopardy and guarantee of due process and whether it conflicts with K.S.A. 22-3722.
The statute in question, K.S.A. 21-4608(f)(5), states:
“When consecutive sentences are imposed which are to be served consecutive to sentences for which a prisoner has been on probation, assigned to a community correctional services program, on parole or on conditional release, the amount of time served on probation, on assignment to a community correctional services program, on parole or on conditional release shall not be credited as service on the aggregate sentence in determining the parole eligibility, conditional release and maximum dates, except that credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program.”
On August 21, 1981, in Case No. 81CR418, Shelia Hudson received an indeterminate sentence of 2 to 10 years on a forgery charge. Defendant’s subsequent motion to modify the sentence was granted. The sentencing judge reduced her term to 1 to 10 years’ incarceration. Approximately 9 years later, while on parole for the forgery charge, Hudson was convicted of possession of cocaine in 91CR1391. Hudson was sentenced to an indeterminate term of 3 to 10 years for possession of cocaine. The sentencing journal entry was silent as to 81CR418.
Hudson’s sentence was aggregated, giving her a controlling sentence of 4 to 20 years. Although Hudson spent approximately 9 years on parole for forgery in 81CR418, pursuant to K.S.A. 21-4608(f)(5) she received no credit for “street time,” i.e., time while on parole not spent in a residential facility or assigned to a community correctional residential services program.
Pursuant to K.S.A. 60-1507, Hudson filed a habeas corpus action in district court, claiming that in calculating her term of confinement she should be given credit for time spent on parole. The district court granted relief, ruling that because parole is time served in custody it violated the constitutional prohibition against double jeopardy to force Hudson to serve the time in prison that she had previously served on parole. The court also ruled that it violated due process when time spent on parole was automatically forfeited.
After the State filed a motion to alter or amend, the district court additionally ruled that K.S.A. 21-4608(f)(5) and K.A.R. 44-6-138(g) violate a prisoner’s constitutional rights when the statute and regulation conflict with K.S.A. 22-3722, which states the period served on parole or conditional release shall be deemed as serving of the term of confinement. The State appealed. Our jurisdiction is under K.S.A. 22-3601(b)(2).
The constitutionality of a statute is a question of law, over which we exercise an unlimited standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996). When reviewing the constitutionality of a statute, we must keep in mind the following:
“ ‘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.]” State v. Scott, 265 Kan. 1, 4, 961 P.2d 667 (1998) (quoting State v. Bryan, 259 Kan. 143, Syl. ¶ 1, 910 P.2d 212 [1996]).
Double Jeopardy
The Fifth Amendment guarantee against double jeopardy protects an individual against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). The Fifth Amendment guarantee against double jeopardy is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969).
The State contends that Hudson is not being punished twice for the same offense but is serving an enhanced sentence for possession of cocaine in 91CR1391. The State notes that Hudson’s original sentence in 81CR418 for forgery remains 1 to 10 years.
In Thomas v. Hannigan, 27 Kan. App. 2d 614, Syl. ¶ 6, 6 P.3d 933 (2000), the Court of Appeals reasoned that the enhancement provisions of K.S.A. 21-4608(f)(5) were triggered by a new criminal offense and not punishment for behavior committed prior to the enactment of the statute. Although the Thomas decision concerned an ex post facto challenge, the State suggests the same reasoning is applicable to find no double jeopardy.
Hudson asserts that other courts have held that the constitutional prohibition against double jeopardy applies to the failure to credit time served on parole against the underlying sentence. She notes that Kansas courts have held that time spent on parole is to be credited against the time of confinement and that this is also recognized by the legislature in K.S.A. 22-3722. Hudson concludes that where time on parole is deemed service on the time of confinement, that time must be credited to the original sentence, and that any enhancement suggested by the State is enhancement of the original sentence and a violation of double jeopardy.
In actuality, a majority of jurisdictions that have addressed this issue have found that credit for street time or time on parole after a revocation of the parole can be forfeited without running afoul of the double jeopardy prohibition. Lashley v. State of Fla., 413 F. Supp. 850, 852 (M.D. Fla. 1976); Hill v. State, 22 P.3d 24, 29 (Alaska App. 2001); Segarra v. State, 430 So. 2d 408, 413 (Miss. 1983); Gundy v. Pa. Bd. of Prob. and Parole, 82 Pa. Comw. 618, 622, 478 A.2d 139 (1984); Gaito v. Pa. Bd. of Probation and Parole, 488 Pa. 397, 401-02, 412 A.2d 568 (1980); State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 14, 572 N.W.2d 864 (Wis. App. 1997). Similarly, federal courts interpreting 18 U.S.C. § 4205, which prior to being repealed in 1976 provided that federal prisoners who violated their parole would serve the unexpired terms of their sentences without credit for time on parole, determined that the failure to credit time on parole does not violate double jeopardy. Willis v. Meier, 435 F.2d 852, 854 (9th Cir. 1970); Hodge v. Markley, 339 F.2d 973, 975 (7th Cir.), cert. denied 381 U.S. 927 (1965). Therefore, the validity of denial of parole credit has been almost universally recognized both in federal and state decisions.
For support, Hudson relies on Conner v. Griffith, 238 S.E.2d 529 (W.Va. 1977). However, we note the majority in Conner found that the statute providing discretionary credit for time on parole, if revoked, violated only the Double Jeopardy Clause of the West Virginia Constitution, Article III, Section 5. 238 S.E.2d at 690.
Parole is a privilege, not a constitutional right. Parker v. State, 247 Kan. 214, 217, 795 P.2d 68 (1990). Credit for time spent in jail in determining the service of the term of confinement is wholly a matter of statute. State v. Babcock, 226 Kan. 356, 358, 597 P.2d 1117 (1979). In Segarra, the court stated:
“The mere passage of days with one’s liberty in fact restricted does not necessarily count as time served on one’s sentence. What is and what is not a criminal’s expiating punishment is a creation of law. Which days count, and which days do not is likewise determined by law. The fact of restriction, no matter how real, counts for nothing unless the law says otherwise.” 430 So. 2d at 410.
States that uphold the forfeiture or grant of credit for time spent in determining a prisoner s term of confinement on parole generally do so based on that state's statutes. See, e.g., Segarra, 430 So. 2d at 410 (Miss.); Gaito, 488 Pa. 401-02; Ludtke, 215 Wis. 2d at 11.
When determining a prisoner's term of confinement courts have relied on the analogous situation of the court’s statutory power to grant probation and whether to give credit for time spent on bail when revoking probation.
“Just as a sentence of probation requires that some portion of the defendant’s imprisonment or fine be suspended, so parole requires the conditional forgiveness of jail time and the possibility that this jail time might be re-imposed.” Hill, 22 P.3d at 27.
“A person does not serve a prison sentence while on probation or parole any more than he does while free on bail. In both instances, there are certain restrictions generally on the person’s movements but the person’s condition, as the Court observed in Morrissey v. Brewer, (1972) 408 U.S. 471, 482, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484 is Very different from that of confinement in a prison.’ ” Hall, 529 F.2d at 992.
In the case of probation, the Kansas Court of Appeals reviewed K.S.A. 22-3716(2) (Weeks) and held that giving the court discretion to require the defendant to serve a sentence in full without regard to time spent on probation if a violation of probation is established did not violate the Double Jeopardy Clause of the Fifth Amendment. State v. Snook, 1 Kan. App. 2d 607, 609, 571 P.2d 78 (1977). The Snook court stated:
“As the Kansas Supreme Court has indicated, however, probation represents a grace period during which the defendant has the opportunity to demonstrate that rehabilitation can be achieved without incarceration. See, In re Patterson, 94 Kan. 439, 146 Pac. 1009; In re Henry Millert, Petitioner, 114 Kan. 745, 220 Pac. 509; In re McClane, 129 Kan. 739, 284 Pac. 365. The court stated in In re Millert, Petitioner, supra at 747, ‘The term of parole [by the court] is one of probation, offered the delinquent as a substitute for punishment in the usual way. One who accepts the substitute does so subject to all the conditions imposed by law and by the court.’ When the petitioner in that case failed to satisfy all of the conditions of parole he was subject to confinement under the original sentence ‘precisely as though no parole had been granted.’ (Id.) See also, In re McClane, supra, where the court refused to allow credit for time served in jail as a condition of probation; and Bowers v. Wilson, 143 Kan. 732, 56 P.2d 1212, where the court denied petitioner credit for time spent on probation.” 1 Kan. App. 2d at 609.
The argument for awarding credit for time spent on parole is that a parolee is under such constraints that he or she is for all practical purposes under custody and, therefore, if the parolee is not credited with time spent on parole it constitutes multiple punishment. In Faulkner v. State, 22 Kan. App. 2d 80, 83, 911 P.2d 203, rev. denied 259 Kan. 927 (1996), the Court of Appeals, when determining whether the time an inmate spent on parole under an indeterminate sentence could be used to satisfy the postrelease supervision period of a sentence required to be converted pursuant to the Kansas Sentence Guidelines Act, concluded that time spent on parole is time spent in “custody” and is to be credited as service against the time of confinement. The court’s finding was based on Baier v. State, 197 Kan. 602, Syl. ¶ 1, 419 P.2d 865 (1966), and K.S.A. 22-3722.
In Baier, before considering the habeas corpus motion, our court considered whether a movant who is released on parole is in “custody” within the meaning of K.S.A. 60-1507. 197 Kan. at 603-04. Baier found the rationale of the federal decisions, and particularly Jones v. Cunningham, 371 U.S. 236, 9 L. Ed.2d 285, 83 S. Ct. 373 (1963), authoritative bases for the court’s conclusion that aprisoner released on parole was in custody and could institute a K.S.A. 60-1507 proceeding. The Baier court stated:
“In this state a parole is ‘the release of a prisoner to the community by the parole board prior to the expiration of his term, subject to conditions imposed by the board and to its supervision.’ (K.S.A. 62-2227, emphasis added.) If the conditions of the parole are violated by the parolee, he is brought before the board for a hearing, and in the event the violation is established, the board may revoke the parole. (K.S.A. 62-2250.) Although a parolee is not physically confined‘behind bars,’ nevertheless he lacks the freedom of movement and activity enjoyed by the public generally. The right of the board to impose conditions and maintain supervision, all of which occur under the cloud of an unexpired sentence, places the parolee in the status of one whose freedom, in our opinion, is under significant restraint.
“We therefore hold that a prisoner who institutes a 60-1507 proceeding, and is released on parole from the state penitentiary while his appeal from a denial of his motion by the district court is pending, remains in ‘custody’ within the purview of the statute.” 197 Kan. at 606.
Baier and Faulkner, however, are inapplicable to the issue of custody as it arises in this case. Custody for puiposes of determining credit against a sentence of incarceration and for purposes of standing for habeas corpus petitions are entirely different matters. See Segarra, 430 So. 2d at 411; Willis, 435 F.2d at 853 (concluding Jones v. Cunningham was limited to finding that parole is custody only for purposes of filing habeas corpus); see also Anderson v. Corall, 263 U.S. 193, 196, 68 L. Ed. 247, 44 S. Ct. 43 (1923) (“Mere lapse of time without imprisonment . . . does not constitute service of sentence.”).
In Young v. Com. Bd. of Probation and Parole, 487 Pa. 428, 409 A.2d 843 (1979), an action challenging failure to give credit for time served on parole upon revocation of that parole, the Supreme Court of Pennsylvania addressed the argument that parole is a form of custody. The Young court concluded that such argument
“ignores the fact that the denial of credit is based upon appellant’s failure to comply with the restraints during the parole period. Certainly, if there is compliance with the terms of parole, appellant’s time spent in that status satisfies the prison commitment. It is only where he has ignored the restraints, which appellant argues must be considered as a form of custody, that he can be recommitted without regard to the time spent in the parole status.” 487 Pa. at 437.
Conflict Between Statutes
Here, the district court found that as interpreted, K.S.A. 21-4608(f)(5) was an unconstitutional violation of a prisoner’s due process rights because the statute conflicted with K.S.A. 22-3722. In Faulkner, the Court of Appeals also relied on the language in K.S.A. 22-3722 in concluding that time spent on parole is time spent in custody. 22 Kan. App. 2d at 83. K.S.A. 22-3722 provides in part:
“The period served on parole or conditional release shall be deemed service of the term of confinement, and, subject to the provisions contained in K.S.A. 75-5217 and amendments thereto relating to an inmate who is a fugitive from or has fled from justice, the total time served may not exceed the maximum term or sentence. The period served on postrelease supervision shall vest in and be subject to the provisions contained in K.S.A. 75-5217 and amendments thereto relating to an inmate who is a fugitive from or has fled from justice. . . . The total time served shall not exceed the postrelease supervision period established at sentencing.”
In construing statutes and determining legislative intent, several provisions of an act or acts, in pan materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
K.S.A. 22-3722 deals with satisfaction of release and not a revocation of parole after conviction for a new offense, which is the situation here. The issue in Faulkner was whether time spent on parole under an indeterminate sentence could be credited to the postrelease supervision period of a converted sentence. 22 Kan. App. 2d at 83. Faulkner did not discuss the interplay of K.S.A. 22-3722 with K.S.A. 21-4608(f)(5).
When compared, we note that K.S.A. 22-3722 does not conflict with K.S.A. 21-4608(f)(5). K.S.A. 21-4608(f)(5) covers the event of a consecutive sentencing to a sentence for which the prisoner has been on parole. Credit for time on parole is a matter of legislative grace and not a constitutional right. For the purposes of K.S.A. 21-4608(f)(5), Hudson was not in custody or incarcerated during her time on parole. Hudson’s sentence in 81CR418 was not enhanced, her sentence in 81CR418 has always remained at 1 to 10 years’ incarceration. Under such circumstances, the denial of credit pursuant to K.S.A. 21-4608(f)(5) does not violate double jeopardy.
Due Process
The Fifth and Fourteenth Amendments to the United States Constitution protect an individual’s due process rights and prohibit the deprivation of a significant life, liberty, or property interest.
The district court determined that the automatic forfeiture of credit under K.S.A. 21-4608(f)(5) was a violation of due process. The State contends that the application of K.S.A. 21-4608(f)(5) was triggered by the commission of a new offense and that when Hudson received her due process rights relative to the new conviction and sentence in 91CR1391, she received the due process rights required.
Hudson argues she was entitled to due process when her liberty was revoked. See State v. Miller, 20 Kan. App. 2d 378, Syl. ¶ 4, 888 P.2d 399 (1995). Hudson, however, does not complain that she did not receive her basic procedural due process rights when her parole was revoked. When the due process argument was raised in Lashley under Florida law the court stated:
“[T]here is no right to parole: it is a matter of grace, not of right. [Citation omitted.] Similarly, under federal law, one is not entitled to parole, so that the denial of it does not require procedural due process. Brown v. Lundgren, 528 F.2d 1050 -53 (5th Cir. 1976). Despite the view of the dissent in Brown v. Lundgren, supra, at 1055, the holding was not that there is a distinction between federal rights and privileges with respect to parole. See Lynch v. Household Finance Corp., 405 U.S. 538, 542, 92 S.Ct. 113, 116, 31 L.Ed.2d 424, 429 (1971). Rather, the holding of Brown v. Lundgren was merely the old and familiar principle of constitutional law that one who does not have something, and who has no right to demand it, has no right to procedural due process over a decision not to grant it to him.
“[I]f revocation of his parole is justified, an inmate has no right under federal or state law to insist upon having the time spent on parole, which was a matter of grace, credited to the time that he must serve on his sentence, which was always obligatory anyway. [Citations omitted.]” 413 F. Supp. at 851-52.
The forfeiture of credit for time spent on parole under K.S.A. 21-4608(f)(5) does not violate a prisoner’s procedural due process rights.
The consequences of K.S.A. 21-4608(f)(5) did not affect Hudson until consecutive sentences were imposed for committing a new offense while on parole. Hudson had fair notice. The amendment was effective for nearly 8 years before she committed the act which triggered the application of the statute. No additional punishment was inflicted upon Hudson by virtue of K.S.A. 21-4608(f)(5). Hudson was returned to prison to complete her original sentence and her new sentence. There is no double jeopardy or due process issue.
K.S.A. 21-4608(f)(5) is not unconstitutional nor does it conflict with K.S.A. 22-3722.
Reversed.
Davis, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
Marcus Clemons was convicted after a bench trial of premeditated first-degree murder, attempted first-degree murder, and criminal possession of a firearm. He was sentenced to life imprisonment with the possibility of parole in 25 years pursuant to K.S.A. 1998 Supp. 22-3717 on the premeditated first-degree murder conviction; 732 months on the attempted murder conviction, to run consecutively; and 8 months on the firearm conviction, to run concurrent with the 732-month sentence. He appeals his convictions and the 732-month sentence.
On appeal, Clemons challenges the sufficiency of the evidence of premeditation, the effectiveness of his waiver of a jury trial, the trial court’s refusal to continue the trial, the trial court’s failure to make a record of closing arguments, and the trial court’s imposition of the 732-month sentence. He also claims the trial court violated his right to counsel.
During the morning of June 29, 1999, Marcus Clemons and Tony Davis set out to walk the short distance to a smoke shop, which is located in a small strip mall at the intersection of 9th and Grove streets in Wichita. As he and Davis were walking on the east side of Grove, defendant saw Satin Huffman and Arthur McPherson come out of a house on the west side of the street and begin walking in the same direction as Clemons and Davis. Huffman and McPherson were also going to the smoke shop. Defendant testified that Huffman and McPherson were talking about him and Davis, gesturing toward them and laughing. Huffman testified that they were shouting back and forth across the street.
Defendant and Huffman had known each other since second or third grade, and they had a history of friction. Defendant said that he had been a skinny kid and that Huffman had always been a big guy. Huffman had bullied defendant. Sometimes Huffman and McPherson acted together in bullying defendant, and one time McPherson spit on defendant.
Defendant testified that Huffman and McPherson crossed the street and walked behind defendant and Davis. As they reached the parking lot, Huffman said he would beat defendant and defendant said he would not.
Accounts of what happened after all four young men reached the parking lot vaiy. In general outline but not necessarily in this order, some or all of the men went into the smoke shop, McPherson took off his shirt, defendant pulled his gun from his back pocket, and defendant fired four shots, hitting Huffman twice and McPherson twice. Huffman fell injured in the parking lot. McPherson fell across the street. McPherson died as a result of injuries caused by a bullet that entered his back slightly above the level of his elbow and just left of the midline.
Eddie Mills testified that he was walking by a parking lot near 9th and Grove when he saw three young men there arguing. He heard some shots and saw one of the men fall to the ground. He ran to the liquor store to notify police. He looked back and saw two men running across the street. One man was in front of the other, and Mills thought the one in front was being chased by the other man. Mills heard what sounded like two gunshots, and one of the running men fell. When Mills came out of the liquor store, there was a skinny fellow standing by the fallen man across the street. He thought that a couple of minutes elapsed between the first and second sets of gunshots.
When police officers arrived, Mills told one of them that he had seen four men standing in the parking lot yelling at each other. He also told police that after he first heard shots and one man fell in the parking lot, he saw two men running across Grove. One fired a handgun and the other fell down on the sidewalk on the west side of the street. The shooter continued running.
Police found one man on the ground in the parking lot in front of the liquor store and another man on the ground on the other side of the street. The man on the other side of the street was Arthur McPherson, who was pronounced dead at the hospital. He was wearing pants but no shirt.
Valincia Jones, who owned the liquor store next door to the smoke shop, testified that she knew Satin Huffman. She looked out from the liquor store and saw Huffman and a man she did not know going to the smoke shop. She saw the stranger wave his hands, take off his shirt, and place it on her car. When she heard gunfire, she dropped to the floor. A man came into the store and said to call police. She called the police. When she went outside, she saw Huffman lying in front of the barber shop. The shirtless man was across the street and to the south. Jones testified that she was uncertain about the number of shots, but thought there may have been five. She thought they were all together rather than in two sets.
Felicia Ballance was driving by the parking lot and pulled in to talk to Tony Davis. There were four people in the parking lot. She heard gunshots, and saw Huffman fall. Ballance testified that Huffman and the gunman were close enough to touch each other when Huffman was shot. The gunman got a silver gun with a brown handle from his belt, in the front. He chased McPherson across the street. Ballance testified that she saw no weapons on Huffman or McPherson and that Davis was holding a soda. She heard four gunshots that were all together, and then she heard another gunshot “around the comer.”
Tony Davis did not remember seeing Felicia Ballance at the scene of the shooting. Davis testified that he and defendant walked to the smoke shop, and they saw Huffman and McPherson. Words were exchanged, mostly between Huffman and Clemons. McPherson said he wanted to fight, and he took off his shirt. Davis, Huffman, and McPherson went into the smoke shop without the defendant. After they came out, McPherson asked Huffman to pass him a gun. Huffman said no. Davis did not see either Huffman or McPherson with a weapon. Then defendant shot Huffman with a gun that Davis thought defendant pulled from his back pocket. Davis testified that he was standing between Huffman and McPherson when Clemons shot Huffman. McPherson ran, and defendant shot him. Davis did not think that defendant ran after McPherson. Davis ran away.
Davis had a gun, but he did not fire it. A gun later retrieved by police from Davis’ bedroom in his grandmother’s house was not the gun that fired the bullets retrieved from McPherson’s body.
Huffman testified that he and Clemons had known each other since second or third grade and that they had a history of “[arguments and stuff like that.” Huffman said that the men had been yelling back and forth across the street as they walked to the smoke shop and that, before going into the smoke shop, they were talking about a fistfight. Huffman testified that he and McPherson went into the smoke shop, but Davis and Clemons stayed outside. While in the shop, he noticed that McPherson had gone back outside. As Huffman stepped out of the smoke shop, he saw McPherson taking off his shirt. After he got outside, approximately 3 to 4 feet outside the smoke shop, he felt dizzy and numb. He fell down. He saw some people walking toward McPherson. He did not realize until told at the hospital that he had been shot on the left side of his head behind his ear and in the left hip.
A photograph introduced by the State showed that there were four shops in a little strip mall. Closest to the comer was the smoke shop, then the liquor store, a barber shop, and a candy store. Defendant also was shown a photograph that had been marked to show where blood was found on the parking lot, and he agreed that was where the argument took place. Based on the photographs, defendant agreed that the shooting took place right in front of the barber shop.
Clemons testified that as he and Davis walked to the smoke shop, Huffman walked behind with McPherson and made remarks about beating up Clemons. Clemons and Huffman had known each other a long time. Clemons was a skinny kid; Huffman was a big one. Clemons was bullied by Huffman. Sometimes McPherson had joined Huffman in bullying Clemons, and one time McPherson spit on defendant. Defendant said that he was not going to back down anymore.
Clemons testified that all four men went into the smoke shop, where they continued to argue and McPherson took off his shirt. Defendant was the first to leave the shop. McPherson came out immediately and got in front of Clemons. McPherson’s taking off his shirt indicated to Clemons that the fight was not going to be just him and Huffman.
When Huffman came out of the store, he was in front of defendant. McPherson was to defendant’s left. Defendant testified that he thought they were going to jump him. He considered running but thought he might get caught. Defendant did not know where Davis was and thought he had gone. Defendant was scared. Huffman and McPherson were bigger than him. As defendant was “kinda backing up,” he heard McPherson say, “[Pjass me that 9.” He believed McPherson was asking Huffman to give him a 9 mm gun.
Clemons testified, “I just really . . . got scared, ‘cause I knew . . . they was gonna shoot me with the gun.” He added, “I thought I was gonna die right there.” Clemons testified that he thought Huffman was reaching for a gun when Huffman “just kinda moved his arm like he was going for his hip.” Defendant thought, “[I]t’s gonna either be him or me,” reached for his gun, and fired at Huffman. He fired four times and then ran away. He denied firing the gun after he was running and denied chasing McPherson. Defendant said that he fired the four shots in quick succession, with no breaks between shots. He testified that he shot McPherson before McPherson reached the curb on the near side of the street.
Clemons did not see either Huffman or McPherson with a weapon. He conceded that when he extended his arm to shoot, the gun was approximately a foot from his victims. Clemons also conceded that he shot McPherson in the back.
The trial court took judicial notice that in November 1995 Clemons had been adjudicated as a juvenile offender on a charge of aggravated robbery.
At the conclusion of evidence, the trial court judge announced that he found defendant guilty of premeditated first-degree murder of Arthur McPherson, guilty of attempted first-degree murder of Satin Huffman, and guilty of criminal possession of a firearm.
Clemons contends that the evidence was insufficient to show premeditation, which was an element of the murder and attempted murder counts. When the sufficiency of the evidence is challenged in an appeal from criminal convictions, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the court is convinced a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). Defendant contends that it was happenstance that he went to the smoke shop at the same time Huffman and McPherson went there. He further contends that he did not think about shooting either Huffman or McPherson before he did shoot them and that he used his gun in response to the threat he perceived from Huffman and McPherson.
There is no evidence that it was anything but coincidence that the young men all went to the smoke shop at the same time. Clemons testified that he carried a gun for protection because he lived in an area where people get hurt all the time. All the evidence of the conduct of Huffman, McPherson, and Clemons while walking to the smoke shop shows them arguing. Defendant testified that Huffman was taunting him.
The evidence relative to the shootings is mixed. Clemons testified that the arguing continued while the four men were in the smoke shop and after they came out into the parking lot. He believed he was in mortal danger because he thought he heard McPherson ask Huffman for a gun. Tony Davis stated that he heard McPherson ask for a gun. When Huffman moved his arm, according to Clemons, he shot him twice from approximately a foot away. Bullets struck Huffman behind his left ear and in his left hip. Clemons admitted that he then shot twice at McPherson’s back. Bullets struck McPherson in his left back and the back of his left arm.
Huffman testified that as soon as he stepped out of the smoke shop, he felt numb and dizzy and fell to the ground.
Clemons testified that he fired all the shots in quick succession. Mills heard two sets of gunshots, perhaps several minutes apart. Jones heard only one set of gunshots; she thought there may have been five shots. Ballance heard four gunshots all together and then a fifth shot around the corner.
Clemons denied chasing McPherson. However, Mills saw two men running across Grove Street. One fired a handgun, the other fell down on the sidewalk on the west side of the street, and the shooter continued running. Ballance testified that Clemons chased McPherson across the street.
Viewed in the light most favorable to the State, we conclude that a rational factfinder could find beyond a reasonable doubt that Clemons killed McPherson with premeditation.
With regard to Clemons’ shooting of Huffman, Huffman testified that Clemons gunned him down as soon as Huffman stepped out of the smoke shop, but less subjective State’s evidence placed the shooting in the parking lot in front of the barber shop or the liquor store. The men were arguing. Clemons and Davis thought they heard McPherson ask Huffman for a gun. When Clemons thought he saw Huffman reaching for a gun, Clemons pulled his gun and shot Huffman.
The evidence of premeditation in a first-degree murder case need not be direct and often is established by circumstantial evidence. A conviction of even the gravest offense may be sustained by circumstantial evidence. Premeditation cannot be inferred from the use of a deadly weapon alone; it may be inferred where other circumstances also exist. State v. Murillo, 269 Kan. 281, Syl. ¶ 2, 7 P.3d 264 (2000). A factfinder likely would consider Clemons’ remaining outside the smoke shop while Huffman and McPherson went inside to be a telling circumstance. Clemons testified that it was not unusual for people in that area to be armed; thus, he might have suspected that Huffman and McPherson were armed. He had the opportunity to leave and avoid further conflict, but he did not. Other circumstances the court has identified that may give rise to the inference of premeditation include: (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 de fendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The jury has a right to infer premeditation from the established circumstances if the inference is a reasonable one. Murillo, 269 Kan. 281, Syl. ¶ 2. In this case, Clemons used a handgun when he thought a gun was being pulled on him. Before the shooting, there was general arguing and taunting. No threats or declarations by Clemons were reported. He shot Huffman first and then fled from the scene after chasing and shooting McPherson. Although a closer call than the killing of McPherson, viewed in a light most favorable to the prosecution, a rational factfinder could have found the defendant guilty of attempted first-degree murder of Huffman.
In the present case, defendant’s waiving a jury trial was connected to his attempting to represent himself. The occasion on which Clemons complains he was not represented and should have been was when he waived his right to jury trial on August 7, 2000. Clemons told the trial court on July 14, 2000, that he did not think that his appointed counsel,-Kenneth Clark, was properly preparing his case. Defendant wanted a different attorney, or he wanted to represent himself. Clark was the third attorney to represent Clemons in this case. The trial court did not believe that the grounds presented by defendant were sufficient for a change of attorney. On July 21, 2000, defendant told the trial court that he wanted to represent himself. The trial court advised defendant of the hazards of self-representation. Defendant reaffirmed that he wanted to represent himself. The court agreed, and Clark became standby counsel.
On August 7, 2000, the day trial was scheduled to begin, Clark advised the trial court that Clemons wished to waive a jury trial. Clemons affirmed that he wanted to waive jury trial. The trial court inquired of the defendant: “You understand that, if you give up the right to a juiy, you won’t be allowed to change your mind and have a jury at some future time.” Defendant answered, “Yes.” The prosecuting attorney said that he would be ready to present evidence the following morning. Clark inquired of the defendant: “If they’re ready to proceed immediately, do you still wanna waive a jury?” Clemons replied: “Nah, I need some time. I ain’t ready.” The trial court asked the defendant, “Is that why you wanna waive jury, is to have some time to get ready?” This exchange followed:
“THE DEFENDANT: I’m — yeah. I’m just not ready.
“THE COURT: Okay. All right. Do you wish to continue to represent yourself, or you wanna have Mr. Clark get ready to represent you in your trial?
“THE DEFENDANT: I’m trying to get some kind of counsel. I can’t represent myself.
“THE COURT: Well, I know you’ve been through that long, long and lengthy session with Judge Owens. But you understand, if you give up your right to a jury trial this afternoon, you will not be allowed to change your mind and have a jury trial when you think you’re ready or when the three weeks is up and put it back on the jury trial docket. I’ll just guarantee you that’s not gonna happen. You understand that, sir?
“THE DEFENDANT: Yes.
“THE COURT: Okay. All right. Is it your decision to give up your right to a jury trial?
“THE DEFENDANT: Yes.
‘THE COURT: You’ve discussed it with Mr. Clark.
‘THE DEFENDANT: Yes.
“THE COURT: Okay. And no one — has anyone made you any promises to get you to give up your right to a jury trial?
“THE DEFENDANT: No.
“THE COURT: They threatened you with anything?
“THE DEFENDANT: No.
“THE COURT: Okay. I’ll accept the waiver of jury trial. Case will be taken off the court’s jury trial docket. Be set for bench trial. Three weeks.”
When the parties next appeared before the trial court on August 29, 2000, defendant announced that he was not going to represent himself. Kenneth Clark told the trial court that defendant had informed him the day before that defendant wanted Clark to represent him. Clark requested a continuance in order to complete preparation of the defense. The trial court denied the request for continuance, and trial proceedings began.
On September 27, 2000, the parties appeared before the trial court on defendant’s motion for new trial and sentencing. The principal ground for new trial was defense counsel’s inadequate time for trial preparation. Clark also mentioned defendant’s waiver of jury trial. Clark’s comments on the waiver were, in full:
“Mr. Clemons had also made the decision to waive a jury trial, which I don’t believe was in his best interests.
“I don’t really think he fully understood the potential consequences and the significance of the decision he made to represent himself and the nature of the trial that was undertaken.”
The motion for new trial was overruled.
On appeal, Clemons contends that he did not knowingly or voluntarily waive his right to a jury trial. In the trial court, defendant never sought to withdraw his waiver, but he complained about the waiver of jury trial in the motion for new trial. The motion centered on defendant’s attempted self-representation, but the juiy waiver issue was given as an additional reason for new trial. The mention of jury waiver in the motion for new trial is quoted in the preceding paragraph.
The State relies on State v. Luna, 271 Kan. 573, Syl. ¶ 2, 24 P.3d 125 (2001), in arguing that the issue is not properly before the court. In that case, defendant asserted that he did not knowingly or voluntarily waive his constitutional right to a jury trial. In concluding that the issue was not properly before the appellate courts, this court stated that in the trial court, defendant never sought to withdraw his waiver or made any complaint about it and in his docketing statement, defendant did not include jury waiver as an issue. The court in Luna stated: “Where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review, and the exceptions to that rule do not apply in this case. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).” 271 Kan. at 577. The circumstances in this case differ from those in Luna in that defense counsel brought the jury waiver issue to the trial court’s attention in arguing defendant’s motion for new trial.
On appeal, Clemons argues that his waiver was ineffective because he was not properly advised by the trial court of his right to a criminal trial. We discussed the test for determining the validity of a juiy trial waiver in State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975), see Johnson v. State, 271 Kan. 534, 535, 24 P.3d 92 (2001). In Irving, the court held that “in order for a criminal defendant to effectively waive his right to a trial by juiy, the defendant must first, be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590. In the present case, the defendant personally waived his right on the record.
The question is whether he had been advised of his right to a jury trial before he waived the right. The trial court used the phrases “right to a jury” and “right to a jury trial” several times when discussing waiver with the defendant. The trial court, however, did not tell defendant that he had a right to a jury trial.
In Johnson, 271 Kan. at 534, the defendant was questioned on the record by his attorney to make sure Johnson understood what he would be giving up and was asked in part:
“ ‘Q: Now, you understand that you have a right to go before 12 people to have your case tried?
‘A: Yes, I do.
‘Q: Now, it is my understanding that you are willing to give up your right to a jury trial; is that right?
‘A: That’s right.
‘Q: That means that you would not be tried by 12 people but would be tried by one person.’ ”
The court determined that Johnson was informed of the rights he was waiving. 271 Kan. at 534.
In State v. Stuber, 27 Kan. App. 2d 160, 1 P.3d 333, rev. denied 269 Kan. 940, cert. denied 531 U.S. 945 (2000), the principal issue with regard to jury trial waiver was whether the trial court coerced defendant into waiving juiy trial by threatening to deny an appeal bond if he was convicted by a jury. The Court of Appeals found no indication of the alleged coercion in the record. The Court of Appeals determined that the defendant voluntarily waived his right to a jury trial with an understanding of what he was giving up. The determination was based on the following colloquy during the juiy trial waiver hearing:
“ ‘THE COURT: Your attorney indicates that you’re willing to waive your right to a jury trial in this case. What that means is that if this case goes to trial, it will be tried before a judge and you will be giving up your right to have this case tried before a juiy of 12 persons; is that what you wish to do?
‘MR. STUBER: Yes, I understand that, Your Honor, and that’s, I guess, what I wish to do, yes.’ ” 27 Kan. App. 2d at 164.
In Johnson and Stuber, each defendant was advised that he had a right to have the charges against him tried before a jury of 12 people and that if he waived jury trial he would be tried by a judge. In the present case, in contrast, defendant was not advised that he had a right to have the charges against him tried before a jury of 12 people and that if he waived jury trial he would be tried by a judge.
Clemons further argues that the most egregious failing was the trial judge’s failing to advise him that a jury’s verdict would have to be unanimous. He cites no Kansas case in support of his argument.
Clemons cites Irving for the statement that whether the test for determining the validity of a waiver of the right to jury trial is satisfied in any given case will depend on the particular facts and circumstances of that case. See 216 Kan. at 589. He argues that the waiver is not valid in the particular circumstances of this case. Clemons specifies the following factors, in addition to the failure to advise him what he was giving up: Clemons was 20 years old at the time of the waiver (bom 7-11-80; waiver 8-7-00). He was representing himself. Standby counsel did not get involved in the waiver discussion except to ask defendant, “If they’re ready to proceed immediately, do you still wanna waive a jury?”
The right to a jury trial may be waived, but waiver must be knowingly and voluntarily made. That determination is not made in a vacuum but must be based upon the facts and circumstances in each case. Here, Clemons created the situation of which he now complains. Clemons could not give a valid reason for the court to appoint a fourth attorney to represent him in this case. When the court refused to appoint another attorney, he chose to represent himself. However, Clark remained his counsel and was available on a standby basis. Although Clark was not present when Clemons waived jury trial, Clemons indicated to the court that he had discussed the waiver with his counsel. In fact, it was Clark who advised the judge that Clemons wished to waive jury trial. The waiver was made the day of trial with the jury venire present in the courtroom. Clemons did not complain or seek withdrawal of his waiver during the trial, nor did he ever express ignorance as to his right to jury trial. We conclude under the totality of the circumstances that Clemons knowingly and voluntarily waived his right to a juiy trial.
The trial court followed the procedure described in State v. Lowe, 18 Kan. App. 2d 72, 76-77, 847 P.2d 1334 (1993), for responding to a defendant’s assertion of a right to self-representation in a criminal case. The trial court informed Clemons “that at any time you can change your mind and retain counsel to represent or Petition the Court for appointment of counsel to represent you, which would be the one you have already got.”
As previously noted, on the day of the jury trial Clemons informed the trial court that he wanted to waive the right to a jury trial. The trial judge asked whether Clemons wished to continue representing himself or wanted Clark to prepare to represent him at trial. Defendant replied, “I’m trying to get some kind of counsel. I can’t represent myself.” Instead of pursuing the issue of representation with Clemons when he said that he could not represent himself, the trial judge warned him that if he waived his right to jury trial at that time he would not be allowed to change his mind. After asking Clemons a few more questions, the trial judge accepted defendant’s waiver of the right to juiy trial.
On appeal, defendant contends that when he stated, “I can’t represent myself,” the trial judge was required to inquire whether defendant wished to have Clark reappointed before proceeding with defendant’s waiver of his right to a juiy trial. According to Clemons, by fading to re-inquire whether he wished to have counsel reappointed, the trial judge deprived him of his right to counsel. Proceeding with the waiver of the right to a jury trial without inquiring about reappointment of counsel, Clemons contends, compounded the error and resulted in his being deprived of a second fundamental right.
He cites Chapman v. United States, 553 F.2d 886, 893 (5th Cir. 1977), for the proposition that a criminal defendant may waive his or her right to self-representation by vacillating on the issue. He does not argue, however, that he waived his right to represent himself when he said he could not represent himself. Rather, he argues that the trial court was required to ask again whether he wanted to. have standby counsel reappointed. Clemons cites no authority for the asserted principle. We note that Clark continued as standby counsel, and Clemons informed the court that he had discussed the waiver of juxy trial with Clark. We find no merit in Clemons’ argument.
Clemons next argues that the trial court abused its discretion by denying a continuance of the trial, because the denial prevented presentation of a full and coxnplete defense. He asserts generally that witnesses were not fully interviewed or properly subpoenaed and the State’s evidence was not adequately examined. He offers no more specific information, however, about what defense counsel would or could have done differently if a continuance had been granted.
The State points out that Clark was not completely unprepared when he was asked by defendant on the day before trial to take over representation. The certified copy of the appearance docket that appears in the record on appeal shows that Clark was initially appointed on or about April 24, 2000. On July 14, 2000, Clark was asked by the trial court if he thought he would be ready to try the case on August 7. Clark said, “I believe so. I’m not certain at this point.” The trial court asked: “Is there any problem that you have had in prepaxing this case for trial? .... Do you feel as though you need to talk with him more frequently to assist you in preparing for trial?” Clark answered, “Not at this point, Your Honor.” He further reported that he had been able to get the information he needed for defendant to help him interview witnesses and prepare the defense. A week later, on July 21, 2000, the trial court conducted a hearing for the purpose of finding whether the defendant had made a knowing and intelligent waiver of counsel. Toward the end of the hearing, Clark asked the trial court for clarification of his obligations as standby counsel. He was told to “be available so that the trial Judge can pick up the phone and call you, you can come over and jump in.”
The State also points out that defendant was granted a 3-week continuance when he waived his right to a juxy trial on the day his juxy trial was scheduled to begin.
Again, much of what Clemons complains is a result of his own action. We find no abuse of discretion in these circumstances.
Clemons contends that the 732-month sentence for attempted first-degree murder violates the prohibition of cruel and unusual punishment. Clemons was sentenced to life imprisonment for the first-degree murder of McPherson and to 732 months imprisonment for the attempted first-degree murder of Huffman. The sentences are to run consecutively.
Clemons argues on appeal that the attempted murder sentence is disproportionate to the murder sentence and, thus, constitutes the infliction of cruel and unusual punishment. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). His argument is not that 732 months is longer than life. Rather, his argument is that the amount of time he actually will serve in prison for his 732-month sentence will be longer than the amount of time he will serve in prison for his life sentence. At best, the 732 months may be reduced by 15% for good time, K.S.A. 2001 Supp. 21-4722(a)(2), thus reducing 61 years to just under 52 years. (732 months is 61 years; 732 months reduced by 15% is 622.2 months, which is 51.85 years.) On the life sentence, defendant is eligible for parole after 25 years.
The State argues two grounds on which defendant’s constitutional challenge to his attempted murder sentence is not properly before this court. First, the Court of Appeals has stated that constitutional challenges to a presumptive guidelines sentence are not cognizable on direct appeal. State v. Lewis, 27 Kan. App. 2d 134, 140-42, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000). Second, constitutional issues raised for the first time on appeal are not properly before the reviewing court. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
In Lewis, the Court of Appeals noted that K.S.A. 21-4721(c)(1) provides: “On appeal from a judgment or conviction entered for a felony committed on or after July 1,1993, the appellate court shall not review . . . [a]ny sentence that is within the presumptive sentence for the crime.” 27 Kan. App. 2d at 140. The Court of Appeals further concluded that the statutory prohibition of direct appeal controlled where the defendant’s claim was that the presumptive guidelines sentence imposed on him constituted cruel and unusual punishment in violation of the Eighth Amendment’s cruel and un usual punishment clause. 27 Kan. App. 2d at 140-42. The right to appeal is entirely statutory, and pursuant to K.S.A. 21-4721(c)(1), we have no jurisdiction to hear Clemons’ appeal on this issue. “When the record discloses a lack of jurisdiction, it is the duty of this court to dismiss the appeal.” State v. Medina, 256 Kan. 695, Syl. ¶ 2, 887 P.2d 105 (1994).
Clemons’ final challenge is based on the trial court’s failure to have a record made of closing arguments. At the direction of the trial judge, summation was off the record. Defense counsel made no objection. On appeal, Clemons argues that he was deprived of due process and equal protection because no record of summations was made, thus precluding full review by appellate counsel and this court of the trial proceedings. He does not allege that there was anything improper in summations so that the absence of a record of summations makes it impossible to present the impropriety to the reviewing court. Instead, he argues that the absence of a record of summations is the error.
In all but one of the Kansas cases Clemons cites, the defendants were tried to a jury. The one bench trial case Clemons cites is State v. Gordon, 219 Kan. 643, Syl. ¶ 11, 549 P.2d 886 (1976), which he cites for the proposition that “[w]here trial is by the district court, on appellate review the supreme court indulges in the presumption the lower court considered only properly admissible evidence in reaching its decision unless the contrary is shown by the record.” He concedes that closing arguments are not evidence and that, in a bench trial, the trial court is presumed to possess and apply the ability to filter improper submissions from consideration.
In State v. Stafford, 223 Kan. 62, Syl. ¶ 1, 573 P.2d 970 (1977), the court stated:
“The inability of the state to provide a full transcript of the trial proceedings does not entitle a defendant to a new trial per se. Before defendant can claim he is entitled to a new trial he must demonstrate that despite a good faith effort it is impossible to reconstruct the missing portion of the record and this precludes effective appellate review of the issues.”
Clemons has demonstrated no prejudice as a result of summations not being recorded. Moreover, without a contemporaneous objec lion, the issue was not properly preserved for appellate review. See State v. Zabrinas, 271 Kan. 422, 433, 24 P.3d 77 (2001.)
At oral argument, counsel for Clemons requested and was granted permission to file a supplemental brief addressing whether juvenile adjudications may be included in the criminal history score. Clemons argues that the use of such adjudications is unconstitutional under the ruling in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). We decided that issue in our recent decision in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002). In Hitt, we said:
“Apprendi created an exception allowing the use of a prior conviction to increase a defendant’s sentence, based on the historical role of recidivism in the sentencing decision and on the procedural safeguards attached to a prior conviction. Juvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards; therefore, the Apprendi exception for prior convictions encompasses juvenile adjudications. Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the KSGA.”
Thus, Clemons’ final argument also fails. We affirm the judgment of the district court.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Story Gotti appeals his conviction following a bench trial of making false information. Gotti argues he should have been charged with forgery. We agree and reverse his conviction.
After a bench trial involving the testimony of two witnesses, the district court convicted Gotti of one count of making false information. Ken Haley, a Dillard’s store manager, worked with Gotti in the men’s department at the store. Haley testified he noticed irregular transactions from the men’s department register. Haley described the irregularity in two transactions:
“Well, there were several things. The one transaction that was for four sweaters was voided out and then immediately following that, 2 minutes later, I believe it was die same sweaters were being returned for a, what we call a merchandise only receipt.”
Generally, a customer receives a merchandise only receipt when items are returned without the original receipt. The customer receives credit with the merchandise only receipt with which other store items can be purchased. The receipt indicates the issuing employee’s identification number in the top left comer.
In this case, the identification number on the merchandise only receipt belonged to another Dillard’s employee, Leslie Duncan. Upon interviewing Duncan, Haley determined Duncan did not ring the transactions.
An audit copy of the receipt must be signed by the customer, show the customer’s address, and show the signature of the employee who initiated the transaction. In this case, the audit copy purported to be signed by Duncan; however, Duncan did not initiate the transaction. The customer on the audit copy purported to be Amy Bailey. Haley stated that the audit copy was- used in exchange for other Dillard’s merchandise.
Haley testified that when he interviewed Gotti regarding the transactions, Gotti admitted he had made the transactions because he needed money. On cross-examination, Haley described the transaction:
“The sweaters never left the store. The sweaters were taken off the floor, rung at the register, put back on the floor. They never were purchased, they were never taken out of the store. It was false information being rung through the register to gain a merchandise only [receipt] for $600, to take that receipt and go somewhere else and buy more merchandise.”
Bradley Bryant, a Wichita police detective with the financial crimes section, testified that he interviewed Gotti:
“I had been shown some receipts, and I asked Mr. Gotti if he had falsified any receipts for Dillard’s. Mr. Gotti indicated that he had, that he needed money and that he had created a false sale and return and that he had given those receipts to his girlfriend to take to another Dillard’s store where she was able to purchase TV, perfume and a cologne using those receipts, and he indicated that he had done that, those particular acts.”
Bryant stated that Amy Bailey is Gotti’s girlfriend. Gotti gave the merchandise only receipt to Bailey.
Relying on State v. Rios, 246 Kan. 517, 792 P.2d 1065 (1990), Gotti argues the State improperly charged him with making false information under K.S.A. 2001 Supp. 21-3711, instead of forgery under K.S.A. 21-3710. Resolution of this issue involves the interpretation of statute, and the standard of review is, therefore, unlimited. See State v. Robinson, 261 Kan. 865, 874, 934 P.2d 38 (1997).
Making false information is defined in K.S.A. 2001 Supp. 21-3711:
“Making false information is making, generating, distributing or drawing, or causing to be made, generated, distributed or drawn, any written instrument, electronic data or entry in a book of account with knowledge that such information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud, obstruct the detection of a theft or felony offense or induce official action.”
PIK Crim. 3d 59.13 contains the following relevant elements:
“To establish [making false information], each of the following claims must be proved:
“1. That the defendant knowingly (made) (generated) (distributed) (drew) (caused tobe [made] [generated] [distributed] [drawn]) (a written instrument) (an electric data) (an entry in a book of account);
“2. That the defendant knew that such information falsely stated or misrepresented some material matter which was not what it purported to be;
“3. That the defendant intended to (defraud) (obstruct the detection of a [theft] [_, a felony offense]) (induce official action).”
The State was required to prove Gotti (1) knowingly made a written instrument, (2) that Gotti knew to be false, (3) with the intent to defraud or obstruct the detection of a felony.
Forgery is defined in K.S.A. 21-3710 as:
“(a) Forgery is knowingly and with intent to defraud:
(1) Making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority.” (Emphasis added.)
PIK Crim. 3d 59.11 includes the following elements for forgery:
“To establish [forgery], each of the following claims must be proved:
“1. That the defendant knowingly made, altered or endorsed a-so it appeared to have been (made) (endorsed) (by_) (at another time) (with different provisions) (by the authority of_, who did not give such authority.
“2. That the defendant did this act with the intent to defraud.”
Thus, under the forgery statute, the State would have to prove that (1) Gotti made a writing, (2) so it appeared to have been made by another, and (3) with the intent to defraud.
This court in Rios, another case involving Dillard’s employees, reviewed two defendants’ convictions of making a false writing and of theft by deception. The Rios court quoted the statute in effect at the time, noting:
“ ‘Malting a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.’ ” 246 Kan. at 528.
The making of a false writing was based on the defendants having printed phony refund vouchers on a training register. The phony refund vouchers purported to be filled out at the request of a Dillard’s customer and signed by a customer seeking a refund of items previously purchased. The defendants used these phony refund vouchers to satisfy the store accounting procedures for cash or merchandise they had taken from the store. On appeal, Rios considered whether the defendants’ actions properly fell within the definition of making a false writing rather than a forgeiy.
Rios noted two problems with the application of the false writing statute to the defendants’ actions: “The first problem concerns the nature of the instruments themselves. The second concerns the intended and actual use of the instruments.” 246 Kan. at 528. With regard to the first concern, tire court cited prior case law involving the crime of making a false writing, concluding that the prior cases involved a defendant having made a false statement regarding his or her own affairs. However, the convictions in Rios were based on the phony vouchers purportedly signed by Dillard’s customers: “In short, the vouchers were forged instruments.” 246 Kan. at 529. The court then quoted the forgery statute, K.S.A. 21-3710, and concluded as follows:
“Forgery is a class E felony. Malting a false writing is a class D felony. Clearly, the legislature intended that tire conduct proscribed by K.S.A. 21-3711 deserves a more severe penalty than does the conduct proscribed by K.S.A. 21-3710. The State herein apparently believes it is free to elevate any forgeiy to the malting of a false writing at whim as the latter statute includes all forgeries. We do not agree. The forgeiy statute specifically proscribed the making of an instrument which appears to have been made by another without that person’s consent. Such other person may be real or fictitious. This is precisely what defendants are alleged to have done herein, and, hence, the conduct cannot also constitute the making of a false writing contrary to K.S.A. 21-3711. ~We conclude that the conduct proscribed by KS.A. 21-3711 does include conduct defined as forgery under KS.A. 21-3710.” (Emphasis added.) 246 Kan. at 529-30.
With regard to the second concern, Rios noted that the defendants had only been charged under the making a false writing statute with the alternative specific intent of “with intent to defraud.” 246 Kan. at 528. The Rios court considered whether the defendants’ actions amounted to an intent to defraud, finding there was no such intent with respect to the phony refund vouchers because the vouchers were used to cover up the crime which had already been committed:
“Defendants did not obtain the money represented on each voucher because of the voucher. Dillard’s was not induced and was not intended to be induced to part with the money shown on the voucher by presentation of the voucher. Dillard’s had been deprived of the money shown on the voucher before the voucher was processed by Dillard’s. Each voucher was created for and used to cover up the theft of the money shown on its face. Intent to defraud requires that the maker of the instrument intended to deceive another person and to induce such person, in reliance upon the deception, to assume, create, transfer, alter, or terminate a right, obligation, or power with reference to property. The evidence herein does not satisfy this element.” 246 Kan. at 530.
Rios considered the argument that the cover-up could be considered evidence of an intent to defraud because the defendants would be able to perpetuate their scheme in the future; however, the court, considering the strict construction of criminal statutes, rejected this argument. In conclusion, the court noted that the evidence was not sufficient to support the conviction of making a false writing. 246 Kan. at 530-31.
The Rios court excluded acts constituting forgery from the definition of making a false writing. The issue in this case is whether that exclusion is still valid in light of statutory amendments to K.S.A. 21-3711.
We reverse Gotti’s conviction based on the first of the two concerns addressed by the court in Rios. K.S.A. 2001 Supp. 21-3711, with regard to the first concern, requires that the making of false information be done in the writer’s own name. A forgery is a writing which purports to be that of another. This case presents the same concern. The receipts purported to have been initiated by another employee, Duncan. However, the evidence presented to the trial court showed that the transaction was initiated by Gotti.
The State argues this present case is distinguishable from Rios in two respects. First, the State argues the statute defining the crime of making false information has been amended, including a new specific intent alternative. K.S.A. 21-3711 was amended in 1992 and 1993 to conform to the sentencing guidelines. See L. 1992, ch. 239, sec. 109; L. 1993, ch. 291, sec. 71. In 1996,21-3711 was amended to change the crime from “making a false writing” to “making a false information” and to include electronic falsifications:
“Making, generating, distributing a false writing information is making or drawing or causing to be made, generated, distributed or'drawn any written instrument electronic data or entry in a book of account with knowledge that such writing information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action.” L. 1996, ch. 157, §2.
In 1997, 21-3711 was amended to change the crime to “making false information” and to include the specific intent to “obstruct the detection of a theft or felony offense.” L. 1997, ch. 66, sec. 1.
Over Gotti’s objection, the prosecutor amended the complaint in this case to allege Gotti made the false information “with the intent to obstruct the detection of a theft or felony offense or induce official action.” The record indicates the prosecutor may have done this after Gotti’s attorney raised the issue in Rios.
The facts of this case render the second concern in Rios inapplicable. The facts in Rios can be distinguished because the receipts in the present case were made with the intent to defraud, unlike the receipts in Rios. The defendants in Rios were stealing money first and creating the receipts in order to satisfy the accounting procedures; therefore, “Dillard’s was not induced and was not intended to be induced to part with the money shown on the voucher by presentation of the voucher.” 246 Kan. at 530. Both the present definitions of forgery and making false information include the language “intent to defraud.” See K.S.A. 2001 Supp. 21-3710; K.S.A. 2001 Supp. 21-3711.
In contrast, Gotti created the receipt to give to his girlfriend, who would later present it in exchange for merchandise. The words “obstruct the detection of a theft or felony offense” contained in both the amendment to K.S.A. 21-3711 and the amendment to the complaint in this case are not applicable because the receipts were created to induce Dillard’s to part with merchandise later upon presentment.
While the amendment to K.S.A. 21-3711 could have addressed the second concern in Rios, as applied to the facts of that case, the amendment did not affect the court’s first concern that forgery is the “making of an instrument which appears to have been made by another without that person’s consent,” while making false information involves the perpetrator’s “own business or affairs.” 246 Kan. at 529. The State admits Gotti “did not act in his own name when he created the merchandise receipt for his girlfriend.”
The State cites State v. Welsh, 26 Kan. App. 2d 362, 988 P.2d 261 (1999), for the proposition that Gotti’s conviction be affirmed because he aided and abetted his girlfriend. Under this theory, Gotti’s culpability derives from the actions of Bailey, who acted in her own name. Thus, Gotti, under an aiding and abetting theory, falls within the definition of making false information under K.S.A. 2001 Supp. 21-3711. The defendant in Welsh cited Rios, arguing that “in order to be convicted, of making a false writing, an individual must be acting within his or her own identity.” The Welch court rejected the argument because ‘Welsh aided and abetted Shuey in the making of the false writing.”. 26 Kan. App. 2d at 363. Welsh was convicted by a jury that had been instructed on an aiding and abetting theory. Thus, Welsh can be distinguished because the State never proceeded on an aiding and abetting theory in this case.
We reverse Gotti’s conviction because he. was improperly charged and convicted of the crime of making false information. We need not address Gotti’s other arguments.
Reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Abbott, J.:
The potential adoptive parents appeal the trial court’s denial of their motion to terminate the parental rights of M.B., the biological father of Baby Girl S. In a published opinion by Judge Marquardt, a unanimous panel of the Court of Appeals reversed the decision of the trial court and ordered the case remanded with instructions to terminate the natural father’s parental rights and to grant the petition for adoption. In re Adoption of Baby Girl S., 29 Kan. App. 2d 664, 29 P.3d 466 (2001). This court granted M.B.’s petition for review.
We have carefully considered and reviewed the briefs, arguments, and the record in this case, and we conclude that the Court of Appeals was correct. We, therefore, adopt the opinion of the Court of Appeals and affirm the Court of Appeals and reverse the trial court.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Edward Scott Beard, from his conviction of first-degree premeditated murder of Marvin Foos. Beard challenges the sufficiency of the evidence, contends the trial court erred in denying his motion to dismiss, argues the trial court erred in not admitting polygraph test results, and contends the trial court erred in instructing the jury with PIK Crim. 3d 54.07.
On the morning of May 1, 1997, Helen Foos went to her son Marvin Foos’ house in LaCrosse, Kansas, and discovered Foos lying on his back on the sofa with his face drenched with blood. The bedding on the couch was soiled with blood. Foos was still alive but could not respond to Helen. Foos never regained consciousness before he died.
Helen had made plans with Foos the night before to take him and Lois Sander to the donut shop at 8:30 a.m. Helen knocked on both the screen door and the inside door. The screen door was not locked, although Helen said Foos usually locked it at night. When no one answered the door, Helen walked in and found Foos on the couch where he usually slept.
Helen testified that Sander stayed at Foos’ house with him part of the time. Helen said that after she saw her son’s condition, she went into shock and did not know what to do. As Helen remembered it, Sander came into the living room from the hallway and Helen asked her what was wrong with Marvin. According to Helen, Sander “just pointed to him. She wouldn’t answer me.” Sander was fully dressed and appeared to have been awake for awhile. Helen asked Sander if she had called 911, and Sander said no. Helen told her to call right away.
Paramedics arrived shortly thereafter. After they left, Sander asked Helen to go to the bedroom to calm down, but she refused and went into the kitchen. On the floor of the kitchen she saw two big blood splashes. Not thinking about preserving the evidence, Helen told Sander to clean up the blood and Sander did, despite telling Helen they should not do so.
Sander told a slightly different story. Sander said she was expecting Helen to come by to pick them up to go to the donut shop. Her alarm did not go off, and she jumped out of bed, got dressed, and ran into the living room. She shook Foos to wake him and told him, “Marvin you’ve got to get going . . . .” Sander said Foos just moved around, but did not speak. As for the blood, she said, “Well, it was brown and I thought he threw up tobacco . . . .” Foos had thrown up before when he had been drinking excessively.
Sander said she had stayed with Foos from Monday through Wednesday for approximately 2 years, cleaning his house and driving him places. Foos had cancer and part of his jaw had been surgically removed. Additionally, Sander worked for Reni Albers, a LaCrosse resident, washing walls of houses in preparation for painting. Sander met Beard while she was working for Albers. Sander also worked for someone in Beaver, Kansas, driving a tractor, so she stayed in Hoisington the other half of the week to be closer to Beaver. Sander testified that she and Foos were friends and denied a sexual relationship with him.
It was not long after her arrival that Dottie Schuckman, E.M.T., realized that Foos’ injuries were not the result of an accident. Foos was lying on his back with the left side of his head facing the ceiling. Schuckman testified that she saw several wounds on Foos’ head and blood and brain matter were coming out of those wounds. She recalled there was a trash can on Foos’ right side containing vomit and blood, and a coverlet was pulled up to Foos’ chin. Schuckman also observed blood spatters on the ceiling and wall. After administering oxygen and beginning an intravenous line, Schuckman and another E.M.T. transported Foos to Rush County Memorial Hospital.
Shobhana Bhargava, M.D., treated Foos at the hospital, noting his semiconscious state, a wound and swelling above the left eye, and other areas of trauma on the left side of his head. Bhargava testified that the wounds appeared fresh at that time, but would not hazard a guess as to when the injuries were inflicted. Bhargava prepared Foos for transfer by fife watch to Via Christi St. Francis Medical Center in Wichita so he could receive care from a neurosurgeon. Foos remained in Wichita until May 10,1997, when he was transferred to Rush County Memorial Hospital in LaCrosse for comfort care during the end stage of his life. Bhargava declared Foos dead at approximately 2:30 p.m. on May 10.
Edward L. Jones, M.D., Rush County Coroner, performed an autopsy on Foos’ body the next day. According to Jones, the punch-out nature of the wounds to the left side of Foos’ head indicated he was struck with a heavy object. Because the wounds had a circular feature, Jones suggested to officers that they look for a hammer. Jones found no defensive wounds on the body, which could indicate that Foos was unaware of the attack before it happened and may have been rendered unconscious immediately after tire first blow was struck. Jones listed the cause of death as traumatic blows to the head, leading to skull fractures, cerebral hemorrhage, and necrosis. Jones testified that the manner of death was homicide.
KBI Special Agents Roger Butler, Michael Van Stratton, and Alex Bachelor processed the crime scene on May 1. Butler testified that as they walked around the outside of Foos’ house they found footprints near a basement window. The agents made a cast of the footprints. The interior basement window was open and the screen was in place but not latched. Inside, they saw blood in the living room area and observed drops of blood going down the stairway. At the bottom of the stairs, they saw footprints that appeared similar to the ones outside and followed the footprints back to the same basement window. Of all the basement windows, it was the only one they found opened and unlocked. A mark of mud or dirt was smeared across the basement wall under that window, appearing as if someone had rubbed his or her foot on the wall while entering or exiting the window.
The morning of May 1, Officer Joseph Sellens asked Beard when he had last seen Foos. Beard replied he last saw him around 6:30 a.m. on April 28, 1997. Sellens noted that during their conversation, Beard revealed his knowledge that something had happened to Foos. Sellens testified:
“[D]uring the conversation [he] told me that he and [Foos] didn’t get along. I asked him why? And he said [Foos] was a racist. And I said what do you mean by that? And he told me that he — -that [Foos] had referred to him while talking to [Sander] as a nigger. And he said, but I wouldn’t do anything to him. That’s just— people are what they are. And he said — -and you know, just said [Foos] is a racist. He did ask me what had happened to [Foos] and I said we don’t know at this time. And basically the conversation ended.”
KBI agents interviewed Beard on at least six occasions during their investigation. In addition, the court authorized the attorney general’s office to conduct an official inquisition.
The first interview occurred later on May 1. KBI Special Agent in Charge John Green was at the crime scene talking with Sander when he noticed a black male standing on the comer west of the residence and contacted him for an interview. Green testified that Beard told him an officer at the convenience store said Foos “had busted his head, had fallen down the stairs or something.” Beard told Green that he had picked up Sander at Foos’ house on the morning of April 30, 1997, for work, that they worked all day in Liberal, and returned at 8:30 p.m. After dropping off a rototiller, Sander left. Beard went to his mother and stepfather s home for more than an hour, picked up his dog, and then went home to sleep after going to buy beer. Beard insisted he did not go to Foos’ house after leaving his mother’s house and said he stayed home until morning. Beard also said he had never been in the basement of Foos’ house and denied ever having sex with Sander. After tire interview, Green collected Beard’s black tennis shoes as evidence.
The next day, May 2, 1997, KBI Special Agent Bruce Mellor interviewed Beard’s stepfather, Jerry Johnson. Johnson told Mellor that before Beard left Johnson’s house at approximately 9 p.m., the night before the assault on Foos, Beard told him he had to go see Sander. Johnson said that after Beard left the house, he watched him walk east toward Foos’ house, which was the opposite direction from Beard’s home.
On May 2, Beard agreed to a second interview with Green and Mellor. Beard said that as he walked home from his mother’s house, two friends in a van stopped and drove him home. He drank two beers and went to bed. Beard told the agents he had only been to Foos’ residence two times, on the mornings of April 23 and 30. Beard said he had worn his new black tennis shoes when he went to Foos’ house on April 30, but said he had never been in Foos’ kitchen or basement. Mellor took a pair of brown leather boots that Beard was wearing into evidence. Eventually, the agents took three pairs of Beard’s shoes into custody for examination; Bolt Gears, Gauchos, and Ciaos.
LaCrosse Police Chief Leroy Penka aided the KBI agents in the search for the weapon used to assault Foos. Penka testified that because he considered Beard a suspect at that time, he assisted the agents in walking the route that Beard used to and from work. On May 5, 4 days after Foos was assaulted, Penka and Sellens located a hammer under the 8th Street bridge lying on a concrete ledge.
On May 21, 1997, a forensic scientist notified Mellor that one of the shoe impressions taken in the basement matched or was similar to Beard’s Gaucho boots. Mellor asked Beard for a third interview on May 22, and Beard consented.
Once again, Beard denied ever being in Foos’ basement. Beard stated that Sander told him Foos was a light sleeper and would awaken if anyone came into the house. Mellor asked Beard hypothetically, “What if your fingerprint is on the window?” Beard first responded by saying he had dropped a cigarette on the ground near that basement window because it was situated below the bedroom window where Sander slept. Then Beard implied to Mellor that the basement screen window had fallen and when he put the screen back in place he could have gotten his print on the window. Mellor then told Beard that they found his boot print in Foos’ basement and asked him to explain. Mellor quoted Beard as stating, “It wasn’t my blood. But again you won’t find my boot in the basement.” Using an interview technique designed to elicit a response, Mellor then told Beard that on one end there was first-degree murder and on the other end accidental death and said he did not believe Beard had committed first-degree murder. Mellor testified that Beard responded by stating in case they were only just talking about possibilities, there was such a thing as accessory to a crime.
Kelly Robbins, a KBI forensic scientist, examined the hammer found by police and issued a report on July 9,1998. Robbins found blood on the claw end and neck area of the hammer. DNA tests showed the blood on the hammer was consistent with Foos’ blood. Robbins also discovered a human hair on the neck of the hammer.
In October 1997, an inquisition for the purpose of investigating Foos’ homicide was conducted by Assistant Attorney General Edward Van Petten. Van Petten subpoenaed Beard for an inquisition examination. Van Petten stated on the record, “I do have the authority to grant you immunity if you request it.”
At the inquisition, Beard told Van Petten that Sander came by his house the night before Foos’ attack, telling him that she wanted to get Foos and she wished Foos was dead. Beard said Foos was in love with Sander, but he would order her around and did not like her associating with Beard since he was African-American. According to Beard, Sander came over to his house to talk around 11 p.m., after he had visited his mother, and stayed there until 12:45 a.m. Beard said he and Sander drank beer, and he saw Sander take enough speed that night to stay up for 2 weeks in a row. He advised Van Petten that because Sander had troubled relationships with both Foos and the man in Hoisington that she lived with, he had told Sander that she could stay at his house.
Beard brought up the subject of a he detector test by asking Van Petten, “What do you want now? A lie detector test?” Van Petten replied, “Well, that would simplify things.” After complaining about all the police attention that he and his family were receiving, the conversation with Van Petten occurred that is now the subject of dispute.
“Q. [Van Petten]: Well, like I said, you know, there’s about three times today that you’ve just said you don’t want to talk about that, and I haven’t pushed you a lot, have I? I’ve let you pretty well dictate what you want to tell us?
“A. [Beard]: But it’s the truth.
“Q. [Van Petten]: Well, I’m not arguing that, but if you’re willing to sit down on a polygraph and tell us this and you pass that polygraph, then you’re pretty well out of it.
“A. [Beard]: Yeah, but how do I know it’s not going to be rigged up? See, that’s what kills me.
“Q. [Van Petten]: Well, the KBI doesn’t rig things.
“A. [Beard]: I don’t know what the KBI does, believe me.”
Later in their conversation, Van Petten asked Beard about his footprints in the basement. Beard claimed that since he could not lock the door to his house, someone else may have put his shoes on and went down there. After Van Petten mentioned that Beard’s fingerprint had also been found inside the basement window, Beard told a different stoiy:
“Yes, sir. Something I keep — something keeps popping into my head like I’m trying to remember one time if she asked me to come down to the basement and pulled my legs like this into that window, and I remember sliding like this and landing on the floor, but this is like — oh, I don’t remember. I can’t remember what day it was, ‘cause see, I was drunk. But that’s how, ‘cause it keeps coming into my head like something, like I know I was being pulled, and that’s probably how I got my fingerprints over there, probably.”
Still later during the inquisition, Van Petten asked whether Beard would agree to take the polygraph test, and Beard clearly said, “I won’t.” Beard did agree to provide a blood sample to compare with the blood found at the crime scene.
On November 13, 1997, Van Petten, Mellor, and Assistant Attorney General Steven Starr met with Beard at the Police Department in LaCrosse to allow him to read his transcribed testimony from the inquisition and to make any necessary corrections. Mellor testified that after Beard had corrected and signed the transcript, they sat down with him and started interviewing him in general about his last statement. Mellor stated, “And at that time he said the visions he had was real. It really did happen. And he wasn’t sure though what night it was.” According to Mellor, Beard told them:
“He walked home that night and he was wearing the black tennis shoes. He said he never went upstairs because the floor squeaked. And he had been in Foos’ house three times before. . . . And something was talked about the hammer and he said he never seen the claw hammer.”
Mellor testified that Beard said Sander talked him into sneaking into the house through the basement window to have sex with her. According to Beard, Sander assisted him by pulling on his legs and shirt. Beard told them he was only in the basement for 5 seconds when he heard Foos upstairs walking around and jumped back out through the window and went home. Mellor testified that Beard told them this might have been on the night Foos was murdered.
Van Petten left the attorney general’s office in January 1998. He did not participate in the subsequent investigation or in Beard’s polygraph examination.
On Februaiy 5, 1998, Special Agent Green conducted a fifth interview of Beard. Green contacted Beard at the Pawnee County jail in Lamed, where he had been serving a 10-day sentence, and offered to give him a ride upon his release. Beard consented to Green and Special Agent Bachelor taking him to the Harvest Inn restaurant to review his knowledge and activities associated with Foos’ death.
At first, Beard said that when he left his mother’s house around 9:30 p.m., two friends driving a van gave him a ride home. Sander came to his house about 10:15 p.m. According to Beard, Sander was either high or drank and acted strangely, as if something was wrong or someone had done something to her. Beard asked her to tell him what was wrong but she would not say. He guessed that Foos and her husband or boyfriend in Hoisington were causing her stress. Beard said as he tried to calm her down, Sander said several times that she wanted someone to hurt Foos.
At that point in the interview, Green said Beard told him he wanted to start over because he was confused and had been jumping around too much. This time, Beard said that after the two friends dropped him off at his house around 10:30 p.m., Sander came over and was not acting right. She had a small square box with her containing speed and angrily told him about Foos and her husband pulling her from different sides. Beard said that he had to hold Sander for about an hour to prevent her from going to Foos’ house and harming him. After he let her go, Beard said Sander began drinking his beer. Then he reminded her that they had to work the next day, so she drove herself home. Beard said at that point he finished drinking his beer, passed out, and got up for work at 8 a.m. He said he walked to work around 8:45 a.m., but no one was at Reni Albers’ shop, so he just started picking up around the shop. After he saw the ambulance turn on Foos’ street around 9:10 a.m., he figured something had happened to Foos because of the way Sander had acted the night before. No one showed up at the shop, so he walked distractedly to his mother’s house. From there he saw the police at Foos’ residence.
At that point in the interview, Green confronted Beard because he totally omitted the information about going through the basement window with Sander’s assistance. Green said Beard became visibly agitated, denied he had killed Foos, and said since Green was not his friend, he was not going to tell him eveiything. Beard then said he had been in the basement with Sander on a prior occasion, but not on the night of April 30, 1997. Beard made reference to Sander killing Foos and also said that if he had killed Foos he would not have used a hammer.
Green asked Beard if he would be willing to take a polygraph. Beard said he would take the test if it would get police off his case. Green testified that his response was “that if he took a polygraph and passed it that we would surely reevaluate the direction of the investigation as it pertained to him.”
On February 17,1998, Beard underwent a polygraph at the KBI office in Great Bend, Kansas. Beard later testified that he believed he had reached an agreement with the State through Van Petten that if he took and passed the polygraph test he would “be out of it.” In the opinion of the KBI polygraph examiner, George Johnson, Beard’s answers on relevant questions were nondeceptive, or truthful. At a pretrial hearing, however, the trial court ruled that the polygraph evidence was inadmissible at trial based on Kansas case law.
On November 6, 1998, Mellor was asked to execute a formal arrest warrant against Beard at Lansing State Penitentiary. Before handing him the arrest warrant, Mellor conducted a final interview of Beard. Once again, Beard changed his version of the events that transpired the night of Foos’ murder.
Beard told Mellor that Foos did not like him and that he had heard Foos had been calling him a “nigger” behind his back. Beard also said Foos was responsible for burning a cross in his mother’s lawn. On the night of the murder, Beard said he walked to Foos’ house between 9:30 and 10 p.m. and knocked on Sander’s bedroom window. Beard looked through the window and saw Sander sitting on her bed naked, and then she ran out of the room to help him crawl through the window. Beard said he had sex with Sander on two or three previous occasions. (At trial, Sander denied having a sexual relationship with Beard.) Beard told Mellor that Sander was still naked when he jumped inside the basement while she grabbed his calf and was pulling him inside. Then Beard heard Foos walking around upstairs so he crawled back out of the window.
When Green confronted Beard about the discrepancies in his story, he became agitated and called for the guard so he could end the interview. Mellor testified that while waiting for the guard, Beard “just voluntarily commented [that] it would be no reason to kill Foos just because he called a black a nigger. However, it would be a reason for someone to kill him if he burned a cross in his mother’s yard. And he stated, but I didn’t do it.”
In April 1998, KBI agents interviewed Kathryn Warner, Beard’s live-in girlfriend from January through April. Warner testified at trial that at the time of the April 1998 interview, she did not tell Agent Mellor what she knew because she was afraid Beard’s friends and family would come after her or her kids.
In July 1999, more than a year after the KBI’s first interview with Warner, she contacted the police. According to Warner, an African-American man came to her door and told her she would have to testify on Beard’s behalf, but she did not want to testify for him. Warner contacted the Rush County Sheriff s office and told the deputy sheriff she had lied in her first statement. Warner said that Beard had spoken to her about “the old man that was murdered” and stated that Beard had told her he did kill him.
Warner testified at trial that at some point during the 4 months she lived with Beard, she came up with the idea of leaving Kansas to go to Denver with Beard. She thought of leaving Kansas because Beard’s response to her complaints about her husband was to suggest killing him, and she was afraid for her husband and her children. Warner stated that she and Beard did end up going to Denver and then to Las Vegas. Warner testified as to what happened on the way to Denver:
“We stopped out at a little rest area. And he wanted to get friendly. And' I at that time, I mentioned something about I wanted [to] go — to go home, I missed my kids. And may I use the word? He look at me and said you stupid bitch, I should have killed you like I killed the old man.
“He said the old man was sitting in between the dining room and the — the dining room and the kitchen like table where you eat area, which was the front room and the dining room.
“And he told me he smacked him over the head with a hammer.”
Warner explained that she thought Beard meant he used a sledge hammer, but he told her he used a claw hammer to kill Foos, placing it in his stepfather’s garage afterward. Warner told police that Beard killed Foos because he owed Beard money, and because he thought that a member of Foos’ family had burned a cross in Beard’s mother’s front lawn. Warner testified that Beard threatened to shoot her children in front of her and then shoot her if she told anyone. Beard showed Warner newspaper clippings of Foos’ murder and told her he had been cleared.
The matter was tried before a jury in Rush County. Dr. Lyle Nordhoek, a forensic pathologist, testified for the defense that after examining the claw hammer and Foos’ skull cap, he believed the injuries were caused by a different instrument. On cross-examination, however, Nordhoek testified that he had not been provided with the report matching the DNA of the blood found on the claw hammer to Foos and admitted that the DNA evidence indicated that the hammer found under the bridge may have been the instrument that killed Foos.
Witnesses testified at trial that Sander was initially a suspect in the murder. Counsel for the defense presented evidence that Sander believed she would receive an inheritance from Foos upon his death and that Foos had threatened to write her out of his will if she did not stop seeing Beard. Wayne Petrick testified that when he called Foos’ house at 8:38 a.m. on May 1, he asked how everything was and Sander said all right. When he asked to speak to Foos, she said “no,” and hung up. The defense also presented the testimony of Constance Malcolm, who lived directly across the street from Foos, who denied seeing any activity at his house from 5 to 7 a.m. In closing arguments, defense counsel contended that Sander could have killed Foos, not Beard.
The jury returned a verdict against Beard, finding him guilty of premeditated murder in the first degree. On April 26,2000, Judge Meeks denied Beard’s motion for judgment of acquittal and motion for a new trial and sentenced Beard to life imprisonment, hard 25, with 36 months of post-release supervision. Beard filed a timely notice of appeal and now challenges his conviction and sentence.
I. SUFFICIENCY OF THE EVIDENCE
Beard contends that the State adduced insufficient evidence at trial to prove beyond a reasonable doubt that he was guilty of first-degree murder.
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. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Beard argues that the State’s primary evidence, namely his fingerprint found on a basement window frame, one possible shoe-print, a hammer found along the path Beard walked to work, and the testimony of his former girlfriend does not serve to prove beyond a reasonable doubt that he committed murder. Beard asserts that the evidence is insufficient in that it fails to connect him with Foos’ murder and fails to establish premeditation.
This court has previously stated:
“Issues of credibility are within the province of the jury. On appellate review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are to be resolved in favor of the State. [Citation omitted.]” State v. McCray, 267 Kan. 339, 343, 979 P.2d 134 (1999).
The State adduced sufficient evidence at trial to sustain Beard’s conviction of first-degree murder. Foos died on May 10, 1997, as a result of blunt trauma injuries to his head inflicted on or about May 1, 1997. A hammer with Foos’ blood on it was found under a bridge that Beard crossed on his way to work. Even though there was no indication of when Beard left his fingerprint on the basement window, and even though a defense expert did not believe the shoeprint found in the dust on the basement floor belonged to Beard, Beard admitted in two statements to police that he was in Foos’ basement on the night of the murder. We decline to pass on Warner’s credibility and find her testimony concerning Beard’s confession to Foos’ murder strong evidence lying him to die crime.
“Unless a person actually communicates his or her reasons for taking another’s life, evidence of premeditation must be proved by circumstantial evidence. Such evidence, however, is sufficient to establish even the gravest offenses. Premeditation cannot be inferred from the use of a deadly weapon alone, but it may be inferred where other circumstances also exist. The circumstances which may give rise to an inference of premeditation include but are not limited to (1) the nature of the weapon used, (2) a lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and/or declarations made by the defendant before and after the killing, and (5) lethal blows inflicted after the deceased was felled and rendered helpless.” State v. Navarro, 272 Kan. 573, Syl. ¶ 3, 35 P.3d 802 (2001).
Applying this test to the facts of this case, we find sufficient circumstantial evidence existed to give rise to an inference of premeditation. First, Beard concedes on appeal that the murder weapon was a hammer. Beard argues that since a hammer is a common household item and not a gun or knife preselected for the purpose of killing someone, such an instrument does not lead to the inference of premeditation.
Although in an ordinary context, a hammer is usually considered a tool, not a weapon, in many instances assailants have used hammers to perpetrate a deadly attack. See e.g., State v. Brown, 272 Kan. 809, 37 P.3d 31 (2001); State v. Livingston, 272 Kan. 853, 35 P.3d. 918 (2001); State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001); State v. White, 263 Kan. 283, 294, 950 P.2d 1316 (1997); and State v. Monda, 262 Kan. 58, 936 P.2d 727 (1997). Because hitting someone with a hammer will very likely result in extensive injury or death to the victim, a hammer may be considered just as deadly when used as a weapon as a pipe, baseball bat, knife, or gun. Thus, the use of the hammer as a weapon of attack may lend support to the inference of premeditation.
“[Premeditation cannot be inferred from the use of a deadly weapon alone. Other circumstances, such as those listed above, must exist, in addition to the use of a deadly weapon, in order to support an inference of premeditation. [Citations omitted.]” White, 263 Kan. at 295.
Looking at the second factor, we note that there was no evidence that Foos provoked Beard into a violent reaction. Although Beard expressed a motive for killing Foos, i.e., that Foos owed him money and was responsible for burning a cross on his mother’s lawn, motive is not the same as provocation. Further, Dr. Jones found no defensive wounds on the body, indicating that Foos was unaware of the attack. The lack of defensive wounds would appear inconsistent with a confrontation between the men or with provocation on the part of Foos.
For die third factor, we look to Beard’s conduct before and after the killing. Beard argues there was no evidence related to his conduct that would suggest premeditation. However, in Beard’s statements to police he admitted sneaking into Foos’ basement window prior to the attack. Beard also gave inconsistent statements to police denying and admitting he was in the house and suggested different reasons for entering the basement window. In addition, the fact that the hammer was found under a bridge that Beard crossed daily on his way to work could give rise to the inference that Beard made an effort to conceal the murder weapon.
The fourth factor consists of threats or declarations made by Beard before and after the killing. Beard’s statement to Warner that he should kill her like he did Foos provides potent evidence tying him to the murder. Beard contends, however, that his declarations do not support the idea of premeditation. We disagree. Warner testified that Beard said he killed Foos because Foos owed him money and because he thought a member of Foos’ family had burned a cross in Beard’s mother’s front lawn. Beard’s declarations lead to the inference that Beard went to Foos’ house with the idea of killing Foos for a perceived wrong.
The final factor giving rise to an inference of premeditation includes lethal blows inflicted after the deceased was felled and rendered helpless. Van Petten testified that the blood spatter at the crime scene gave a good indication that Foos was in at least two different positions at the time he was struck. In addition, he stated there was enough force used in the blows dealt with the hammer to spatter blood onto a wall and the ceiling, which was approximately 6 feet above the surface of the couch. Dr. Jones found four distinct wounds on Foos’ skull, two of which broke completely through the skull exposing his brain matter. Beard argues that since there was no evidence as to the order in which the blows were dealt, an inference of premeditation cannot be drawn. No evidence clearly indicates whether Foos was rendered helpless as a result of the blows from the hammer or whether Foos was asleep at the time he was attacked. Because there were no defensive wounds on Foos’ body, however, it is likely that at least one of the two lethal blows was administered after Foos was felled and rendered helpless.
“A guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial. The probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each. When a verdict is challenged for sufficiency of the evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses.” State v. Sanders, 272 Kan. 445, Syl. ¶ 4, 33 P.3d 596 (2001).
Based upon the evidence presented at trial, we conclude that a rational factfinder could have found Beard guilty beyond a reasonable doubt of the premeditated first-degree murder of Foos.
II. MOTION TO DISMISS
Beard next argues that the State breached its agreement with him to dismiss the prosecution in exchange for his passing a polygraph, and that the trial court erred by denying his motion to dismiss based on the State’s breach.
“Although the question has not been raised frequently, there is authority for the view that an agreement to dismiss a pending prosecution if the defendant successfully passes a polygraph test is enforceable.” 21 Am. Jur. 2d, Criminal Law § 288 (1998). Appellate courts reviewing claims of error in regard to agreements to dismiss contingent upon polygraph tests have reviewed the record for substantial evidence supporting the district court’s determination. See Harris v. State, 841 P.2d 597 (Okla. Crim. 1992); People v. Starks, 146 Ill. App. 3d 843, 497 N.E.2d 187 (1986); People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975); State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974); Butler v. State, 228 So. 2d 421 (Fla. Dist. App. 1969); State v. Davis, 188 So. 2d 24 (Fla. Dist. App. 1966).
“Substantial evidence is evidence that possesses both relevance and substance and furnishes a substantial basis of fact from which the issues can reasonably be resolved. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” State v. Jacques, 270 Kan. 173, 183-84, 14 P.3d 409 (2000).
In a pretrial motion and on appeal, Beard maintains that Van Petten cut a deal with him in regard to a polygraph examination. The State takes the position, however, that no plea agreement was reached and there was no grant of immunity actually given. There fore, we must first determine whether the prosecutor agreed to drop Beard as a suspect or to dismiss pending charges in exchange for Beard passing a polygraph test.
The trial court conducted a hearing on the matter on October 7, 1999. The trial court denied Beard’s motion to dismiss.
According to Beard, during his inquisition examination, “the State offered to have Defendant take a polygraph test, to which Defendant asked what he would get in return. The State, speaking through Assistant Attorney General Van Petten, represented to Defendant that if he would take and pass the polygraph, then he would be eliminated as a suspect.”
At the hearing, the State presented the testimony of KBI Special Agent in Charge John Green. Green had interviewed Beard at the Harvest Inn restaurant in Lamed on February 5, 1998. Green asked Beard if he would be willing to take a polygraph, and Beard said he would take the test if it would get police off his case. Green testified that his response was “that if he took a polygraph and passed it that we would surely reevaluate the direction of the investigation as it pertained to him.”
Ultimately, the trial court found:
“Well, I think the answer to tire motion to dismiss is pretty simple if you look at it under contract law, because it is my opinion that based on the testimony that I’ve heard that there was no meeting of the minds.
“I think the statement made by Mr. Van Petten is subject to several interpretations, being out of the case or pretty well out of it, does not mean in my opinion that you’re not going to file charges, that you’re not going to continue to be a suspect. That is merely a statement made by an investigative officer saying that if you take a polygraph and pass it you’ll pretty well be out of it. He didn’t say you are not going to have charges filed against you. It may indicate that you would be less of a suspect, but to me it is not a clear understanding statement that could clearly be understood by either party.
“I might be a little more impressed with the situation if charges had been filed and there might have been some purported agreement between the prosecutor and the Defendant, but that hadn’t happened. We’re at the investigatory stage of the situation. Mr. Van Petten was very clear in his testimony that he may have statutorily had the right to offer immunity, but their internal policy prevented him from doing that. I think it is really clear that the motion to dismiss should be denied.”
Here, Van Petten’s initial statement to Beard in the October 1997 inquisition examination was that “if you’re willing to sit down on a polygraph and tell us this and you pass that polygraph, then you’re pretty well out of it.” During the inquisition, Beard refused Van Petten’s offer. No agreement was signed. In January 1998, Van Petten left the attorney general’s office. This interchange cannot be construed as a promise by the State to eliminate Beard as a suspect or as an agreement not to file charges.
Green testified that during thé February 1998 interview, he told Beard that if he passed a polygraph test, police would “reevaluate the direction of the investigation.” Although his statement was designed to persuade Beard to take a polygraph, it did not contain a promise to eliminate Beard as a suspect.
Beard cites State v. Wills, 244 Kan. 62, 67-69, 765 P.2d 1114 (1988), in support of the idea that to the extent that any ambiguity exists in a plea bargain, this court must strictly construe the agreement in favor of the defendant. Beard’s argument misses the mark. An agreement must first exist before it can be construed.
We find substantial evidence in the record sufficient to support the district court’s conclusion that there was no clear understanding or agreement between the parties. Therefore, the trial court correctly denied Beard’s motion tó dismiss based on his claim that the State breached its agreement with him. Further, polygraph evidence has long been inadmissible in Kansas absent a stipulation of the parties. State v. Shively, 268 Kan. 573, 579, 999 P.2d 952 (2000). There was no stipulation made by the parties. Thus, Beard’s claim of error fails.
III. EVIDENCE THAT BEARD PASSED A POLYGRAPH TEST
Beard claims that the trial court’s decision to refuse to admit evidence that he passed the polygraph denied him the ability to adequately present a defense.
“The admission or exclusion of evidence lies within the sound discretion of the trial court. 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 only when no reasonable person would take the view adopted by the trial court.” State v. Leitner, 272 Kan. 398, Syl. ¶ 1, 34 P.3d 42 (2001).
Beard concedes on appeal that the exclusion of evidence is subject to K.S.A. 60-261, the harmless error rule.
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice.” K.S.A. 60-261
Before the trial, counsel for Beard indicated to the State that he intended to offer Sander s and Beard’s polygraph test results, and in response, the State filed a motion in limine. The trial court found that since there was no stipulation between the parties, it could not admit the polygraph results, based on Kansas case law, and granted the State’s motion in limine.
“When a motion in limine has been granted, it is the responsibility of the party being limited to proffer sufficient evidence to the trial court in order to preserve the issue for appeal.” Brunett v. Albrecht, 248 Kan. 634, 640, 810 P.2d 276 (1991). See State v. Caldwell, 21 Kan. App. 2d 466, 473, 901 P.2d 35, rev. denied 258 Kan. 860 (1995).
Because Beard did not move to reconsider or make a proffer during trial, he has failed to preserve the issue of the propriety of the motion in limine for appeal. The issue is not properly before this court and will not be addressed.
IV. PIK CRIM. 3d 54.07
Last, Beard claims that the trial court committed prejudicial error when it instructed the jury using PIK Crim. 3d 54.07, because the evidence at trial failed to show that Beard committed the offense with someone else.
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate anyone instruction. 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. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the juiy 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 instructions is clearly erroneous. K.S.A. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred. [Citation omitted.]” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Counsel for Beard objected to the use of PIK Crim. 3d 54.07 at trial, but the trial court overruled the objection. Noting the arguments of counsel, the trial court stated:
“Okay. Well, it is my opinion based on the evidence that I’ve heard, that the juiy may conclude that there was another party involved, particularly the evidence involving the will and inheritance possibly by Lois Sander, the evidence that was presented concerning their activities at the funeral, the observations of the lady who lived across the street, and not seeing activity during those hours that she was able to observe, that appears to me to be an appropriate instruction for this case. So, I will allow it.”
The trial court used PIK Crim. 3d 54.07 as a basis for Instruction No. 6, which read as follows: “It is not a defense that another who participated in the commission of the wrongful act constituting the crime has not been charged with or convicted of the crime or any lesser degree.”
In addition, the trial court instructed the jury to presume that Beard was not guilty and that if jurors had a reasonable doubt as to the truth of any of the claims required to be proved by the State to find Beard not guilty.
Beard argues that Instruction No. 6 should not have been given to the jury because the defense theory was that Sander committed the offense alone, not him, and the instruction misled the juiy into thinking that they committed the offense together.
Evidence was adduced that the night before the murder Sander stated she wanted Foos dead, that Sander thought she would receive an inheritance upon his death, and that Sander may have let Beard into Foos’ home. Beard’s statement to investigators that there was “such a thing as accessory to a crime” standing on its own provides sufficient reason for giving this particular PIK instruction.
We find it unreasonable that the jury was misled by the jury instructions. There is no real possibility the jury would have rendered a different verdict if Instruction No. 6 had not been given. Therefore, under the facts of this case, the instructions do not constitute reversible error.
Affirmed. | [
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In a letter dated May 21, 2002, to the Clerk of the Appellate Courts, respondent, Thomas Curtis Kelley, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice in Kansas, pursuant to Supreme Court Rule 217 (2001 Kan. Ct. R. Annot. 272).
At the time the respondent surrendered his license, a panel hearing on three separate complaints against him was pending. The complaints contained allegations of using his client trust account improperly, failing to disclose a material fact to third parties, conduct involving dishonesty or misrepresentation, as well as conduct that adversely reflected on the respondent’s fitness to practice law. Additionally, the respondent has entered a plea of guilty to a felony in the United States District Court for the District of Kansas.
This court, having examined the file of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Thomas Curtis Kelley be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Thomas Curtis Kelley from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs therein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276). | [
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The opinion of the court was delivered by
Abbott, J.:
This action is brought by the Attorney General of the State of Kansas pursuant to article 10, § 1 of the Kansas Constitution, which provides for reapportionment of senatorial and representative districts. This court recently upheld the validity of 2002 Substitute for House Bill 2625, which reapportioned the House of Representatives, in case No. 88,735 filed April 26, 2002.
2002 Substitute for Senate Bill 256 passed the Kansas Senate on April 2, 2002, by a 29 to 11 margin. The exact plan was subsequently passed unchanged by the Kansas House of Representatives on April 4, 2002, by a 106 to 15 margin. Governor Bill Graves signed the bill on April 8, 2002. On April 25, 2002, the attorney general filed a petition with the clerk of the court to determine the validity of 2002 Substitute for S.B. 256.
When the attorney general filed her pleadings in this court to determine the validity of the bill, the court immediately entered' an order scheduling a hearing on the petition for Tuesday, May 7, 2002, in the Kansas Supreme Courtroom, Kansas Judicial Center, 301 S.W. 10th Avenue, Topeka, Kansas, commencing at 1:30 p.m. To provide wide public notice of the hearing, the court directed the clerk of the court to publish a copy of the scheduling order one time in each of 13 newspapers of wide circulation: The Topeka Capital-Journal, The Kansas City Kansan, The Kansas City Star, The Wichita Eagle, The Emporia Gazette, The Salina Journal, The Hutchinson News, The Pittsburg Morning Sun, The Garden City Telegram, The Junction City Daily Union, The Manhattan Mercury, The Lawrence Journal-World, and The Arkansas City Traveler. A copy of the scheduling order also appeared in the Kansas Register and was posted on the Supreme Court’s website at www.kscourts.org. Interested persons were invited to file written statements in support of or in opposition to the proposed reapportionment before noon on Monday, May 6,2002, and those submitting written statements were invited to make oral presentations. Interested persons submitting written statements were not required to present their views orally to the court. A written statement in favor of the redistricting plan was submitted by Senator Anthony Hensley of the 19th District and Senator Stan Clark of the 40th District.
Carla J. Stovall, attorney general, appeared in person. William Scott Hesse, assistant attorney general, appeared in person and argued the case. They recommended to the court that it approve the reapportionment legislation.
The attorney general’s office provided maps of the senatorial districts for the entire state and individual maps of the senatorial districts for numerous counties and cities. The maps were admitted by the court and made a part of the record.
Upon consideration of the matter, the court examined the written statements filed, the petition filed by the attorney general, along with its exhibits, and the brief filed by the attorney general. The court also examined the maps of the senatorial districts provided by the attorney general’s office and took judicial notice of other relevant official records.
Despite the lack of objection, the court is required by article 10, § 1(b) of the Kansas Constitution to examine the legislation and determine the validity of the reapportionment legislation. “ In determining whether a reapportionment act is valid, a court must examine both the procedure by which the act became law and the substance of the apportionment act to determine that it satisfies constitutional requirements.’ ” In re House Bill No. 3083, 251 Kan. 597, 601, 836 P.2d 574 (1992) (quoting In re Substitute for House Bill No. 2492, 245 Kan. 118, Syl. ¶ 1, 775 P.2d 663 [1989]).
In the case of In re 2002 Substitute for House Bill 2625 filed on April 26, 2002, this court set forth the general rules of law for reexamining reapportionment legislation which this court uses as guidelines. Those rules will not be set forth in this opinion, but are adopted by reference, and the reporter of decisions is directed to put the official cite in this opinion when it becomes available.
The procedure by which the reapportionment legislation was enacted has not been challenged. In the absence of evidence of a violation of constitutional or statutory law, or any evidence that the applicable legislative rules were not followed, we do not find any procedural inadequacies.
Next, our review of 2002 Substitute for S.B. 256 takes up the substantive validity of the legislation on senatorial districts. The fact that other redistricting maps might have been drawn with lower deviations is irrelevant to our inquiry, which is limited to the constitutional validity of this legislation. See In re House Bill No. 3083, 251 Kan. at 605.
The bill divides the state into 40 districts. The ideal senatorial district would consist of 66,806 persons. The ideal figure can be obtained by dividing the state adjusted population figure of 2,672,257 by 40. The largest district is District 31 located in Harvey and Sedgwick Counties with a population of 69,839 (or +4.54%), while the smallest district is District 37 located in Johnson County, a traditionally high growth area, with a population of 63,648 (or - 4.73%). Applying the 2000 census figures as adjusted to the current districts reveals an overall deviation of 9.27%, a range that is constitutional. The deviation of 9.27% is less than the 10% standard discussed in our prior House reapportionment opinion, and it is presumed valid for Fourteenth and Fifteenth Amendment purposes.
Only one new district that is not represented by a current member of the Kansas Senate was added in 2002 Substitute for S.B. 256. This district is District 37 in Johnson County.
Conversely, only two current members of the Senate are in the same district. The 36th Senate District potentially pits Democrat Janis Lee and Republican Larry Salmans against each other in the 2004 Senate general election.
The United States Supreme Court has stated: “Redistricting may pit incumbents against one another or make very difficult the election of the most experienced legislator. The reality is that districting inevitably has and is intended to have substantial political consequences.” Gaffney v. Cummings, 412 U.S. 735, 753, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973).
Districts meriting special attention appear in Wyandotte and Sedgwick Counties. District 4 in Wyandotte County has been retained. In 1992, District 4 was a majority African-American district. Senate District 4 currently is represented by an African-American. In the proposal for reapportionment before the court, Senate District 4 has a 49% African-American population. Clearly, this African-American district retains a sufficient African-American population to influence an election.
District 29 in Sedgwick County is represented by an African-American and has been retained. In 1992, District 29 had a significant African-American voting bloc. The African-American voting bloc was not diminished by redistricting and retains a 33.1% African-American percentage. The Hispanic population in Wichita is fairly well distributed through the city and does not represent any appreciable percentage of the population of any senatorial district. An example of the distribution of Hispanic voters throughout Wichita is expressed by the fact a Hispanic male represents House District 28. Thus, Sedgwick County has one majority African-American district that is currently represented by an African-American. In addition, there is a majority district which is represented by a Hispanic person.
We must conclude that none of the Kansas senatorial districts created in 2002 Substitute for S.B. 256 appear to violate the provisions of the Voting Rights Act, 42 U.S.C. § 1973 (1994). No challenge has been registered, and minority representatives of these districts were consulted and participated in the drawing of lines for these districts.
We also conclude that the Kansas senatorial districts created in 2002 Substitute for S.B. 256 do not violate the one person-one vote principle. Minority representatives of these districts were consulted and participated in drawing the lines for these districts, and no challenge has been raised in connection with the one person-one vote principle.
Our review of the substantive validity of the reapportionment legislation includes a determination of whether the districts are compact and contiguous as drawn. “[Ljack of contiguity or compactness raises immediate questions as to political gerrymandering and possible invidious discrimination which should be satisfactorily explained by some rational state policy or justification.” In re House Bill No. 2620, 225 Kan. 827, 834, 595 P.2d 334 (1979). However, “[t]he mere fact that a political entity, such as a couniy, is split does not vitiate the act.” In re House Bill No. 3083, 251 Kan. at 607-08.
After examining the maps of the districts provided, we conclude that no violations exist that would require a satisfactory explanation.
2002 Substitute for S.B. 256 draws new boundaries for the 40 Senate seats. The bill passed the legislature with fairly strong bipartisan support, and it has been signed by the Governor. Legislation is presumed to be constitutional.
Under the circumstances disclosed herein, we conclude the reapportionment plan for the Senate does not violate the one person-one vote principle guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Judgment is entered upholding the validity of 2002 Substitute for S.B. 256. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant Daniel Parker, Jr., convicted of first-degree murder, alleges that the trial court erred when it instructed the jury that the definition of premeditation is “to have thought over the matter beforehand for any length of time sufficient to form an intent to act,” and when the prosecutor was allowed to comment on the credibility of witnesses during closing argument.
The victim, Taurean Wynn, was known to his friends and to those on the street as “Big T.” Wynn was killed by gunshot wounds inflicted during an argument in the parking lot of the apartment where he lived. Nina Tate, who lived in one of the units near the lot, was interviewed by a police officer at the murder scene. Nina said that she saw Parker shoot the victim numerous times in the torso and then flee on foot. Two other witnesses, Marishawn Walker and Kizzy Kenner, initially told police that they heard multiple shots but saw nothing. The officer who interviewed Marishawn and Kizzy believed they were apprehensive. Five shell casings and a bullet fragment were recovered from the crime scene.
Nina Tate testified at trial that she lived in one of the units on Elmwood with both Marishawn and Marishawn’s boyfriend, Wynn, whom she knew as “Big T.” Wynn hung out in the parking lot and in Nina’s apartment. Before Marishawn dated Wynn, she dated Parker, who was known as “Poochie.”
The night before the shooting, Wynn, Marishawn, and Parker were at Nina’s apartment with two other friends. They drank beer and smoked marijuana in Nina’s living room for 2 to 3 hours. Wynn asked Parker for the $5 or $10 he was owed. Parker refused to pay him. Wynn retrieved a shotgun from upstairs and stuck the barrel in Parker’s face. Parker gave Wynn the money and left immedi ately. This occurred at approximately 3 a.m. Nina described Parker’s attire that evening in detail. Parker had worn black pants, a black shirt, a black leather jacket that came to the knees, and black work boots. Parker wore his hair in braids. At 4 or 5 a.m., the five people remaining at the party went to sleep in Nina’s upstairs bedrooms. The men left between noon and 2 p.m. the following afternoon. Nina went back to bed.
Kizzy awakened Nina and told Nina that Parker was at Kizzy’s and that she thought Parker was going to kill Wynn. Nina did not believe Kizzy. Nina took a bath. As Nina dressed, she heard Parker and Wynn arguing in the parking lot outside her apartment about money. Nina leaned out the window and observed Parker, who had a gun, chasing Wynn around a car. The gun had a clip. Nina had not seen Parker with the gun before that day. Nina went downstairs. When she stuck her head out her front door, she observed that Parker had the gun in Wynn’s face. Parker then hit Wynn in the head with the gun to knock him down. Nina believed that Wynn, while lying on the ground, begged for his life and asked Parker not to shoot.
Parker shot Wynn in the stomach or chest. Wynn groaned. Parker shot again. Wynn was shot five times. Parker had bent over and fired the last shot into Wynn’s neck as Wynn lay on his stomach. The entire shooting took a minute or two. Parker then ran away. Nina stated that she saw no one else in the lot and had no doubt that it was Parker who shot Wynn.
Kizzy Kenner lived in the end unit. The parking lot was closest to her apartment. Kizzy went from her apartment to Nina’s apartment to call an ambulance. While Kizzy called, Nina and Marishawn went to Wynn. Wynn was alive and breathing. Wynn stopped breathing as the ambulance arrived.
During a conversation after the shooting, Kizzy told Nina she would not want to testify against Parker because he was her friend. Marishawn informed Nina that she was too afraid to testify against Parker.
At trial during cross-examination, Nina testified that Wynn sold crack in die parking lot. She also testified that before the police arrived, while in the parking lot, Nina told Marishawn what she had seen. Nina denied that she had told a policeman that Kizzy Kenner was outside and saw the incident. Nina also denied telling the officer that the shooter turned as if to walk away and then turned back around to fire. On redirect, Nina testified that she saw Parker’s back during the shooting and observed his face when Parker turned to run.
Marishawn Walker’s testimony differed as to the details of the shooting. Marishawn testified that she had dated Parker when she lived with Kizzy. When she moved in with Nina, Marishawn began to date Wynn. She testified this did not cause hard feelings between Parker and Wynn. She also testified that Wynn wore his long black leather coat, black pants, and a dark shirt the night before the murder. At the party that night, Wynn, when taunted about the $10 Parker owed him, went upstairs for the gun he kept in the bedroom.
Marishawn stated that the next day when they awakened, Wynn left to get something to eat. Marishawn said that while she was talking on the phone, Nina, who was looking out the door into the parking lot, said that Wynn was being robbed. Marishawn looked out and observed Parker yelling in Wynn’s face. Marishawn returned to the phone, stated that Wynn was being shot, then ran outside and saw Wynn lying on his stomach. She observed Parker shoot Wynn once more. She believed it was Parker because the person was wearing the same clothes Parker had worn the night before. Marishawn had heard three or four shots and observed the final shot. She ran to Wynn, but did not know if he was alive. She observed Kizzy push her children back into her apartment before running to Wynn.
On cross-examination, Marishawn was questioned about her prior statement to police. Marishawn had stated that Kizzy was outside on her porch when the shooting occurred. Marishawn was then questioned about her statement to police that before Parker fired tire last shot, he looked as though he was about to run and then came back and fired again.
At trial, Kizzy Kenner’s testimony also differed as to the details of the shooting. She testified that Parker and she greeted each other when they met, but that Parker had never been in her apart ment. Kizzy testified that she was home with her children, in the bathroom of her apartment, when Wynn was killed. She admitted that she had been to Nina’s to visit hours before the murder.
Kizzy testified that she heard two or three shots, went outside, and saw Wynn lying on the ground on his stomach in the parking lot. She said she then went to Nina’s and called the police. She went back to see that Wynn was breathing and then someone called the police again because it took so long for help to arrive. Kizzy denied that she told Nina that Parker might kill Wynn. Kizzy testified that before the shooting Wynn had pulled a gun on Parker at the party.
The coroner testified that there were seven gunshot wounds to the body and six bullets had entered Wynn’s body. Five bullets were retrieved. Several of the wounds would have been fatal. Testing indicated that Wynn had previously ingested marijuana.
Daniel Estell was called by the defense. He testified that he was 10 feet from the shooter, who was wearing a mask. Estell stated that Parker did not shoot Wynn. When questioned, he testified that the shooter wore a mask so he could not tell whether it was Parker. Estell said that 3 days after Wynn died, Estell began to date Marishawn. Nina told Estell that Parker was the shooter.
On cross-examination, Estell testified that he was jailed and had previously been convicted for theft. Estell stated that he was in the parking lot selling drugs with Wynn when the shooting occurred. Estell said that he could not describe any physical characteristics of the shooter because he had run away after the first shot. Estell testified that the shooter came out of the back of Kizzy’s apartment.
Estell further testified that after Wynn was hit with the gun, Wynn cried out that he had nothing on him. Estell said he saw a silver and black automatic gun. He did not know any details about the race or build of the shooter.
Estell testified he met Parker 1 month before the trial. Estell was forced to admit that he had been housed in the same unit with Parker for a few days when incarcerated. When asked if he had said to anyone that it was Parker who killed Wynn, Estell did not answer the question but instead immediately denied writing the letter. The letter indicated that Estell would testify that he saw Parker shoot Wynn over $10, in exchange for dismissal of his case. Estell denied writing the letter even though it contained his criminal case number, inmate number, and signature.
An assistant district attorney testified that he had received the letter from Estell offering to testify about the murder and that the letter provided details about the murder.
Finally, a law enforcement officer who had investigated the shooting testified that on the day of the murder Nina reported that the shooter wore a black shirt and tan shorts. Nina was certain at that time that Parker was the shooter. The officer stated that Kizzy had refused to cooperate at the scene.
After all the evidence had been submitted, the juiy was instructed that arguments of counsel are not evidence. The jury was also instructed that it was for the jury to determine the weight and credit to be given the testimony of each witness.
During closing argument, the prosecutor stated that Nina and Marishawn had no motivation to he. The prosecutor characterized the testimony offered by Kizzy and Estell, stating:
“[Prosecutor]: Kizzy Kenner also testified. And remember Nina’s testimony about a conversation she had with Kizzy after this homicide happened. That she talked to her about testifying and Kizzy said there is no way she is going to testify against her friend Daniel Parker. She was uncooperative with the police. When Detective Glaspie approached her at the scene minutes after the crime has occurred, she wouldn’t give her last name. Says she saw nothing, heard nothing, refused to cooperate at all. And in court today she did admit that she does know him, that she was there, she did hear some things, she did see some things.
“We know that she wasn’t telling the truth about not knowing who did this. Because there’s been testimony about how well she does know him and that she came over to Nina’s that day and commented about [Parker] acting like he’s going to kill [Wynn]. And even the defendant’s own witness Daniel Estell said that Ms. Kenner is very well-acquainted with [Parker], They all hung out together.
“The only comment I have about Ms. Kenner’s testimony — other than the fact that she probably knows more than she’s telling us — is that she probably does have some reason why she’s not telling us the whole story. And I don’t know that we’ll ever know why she is not telling the whole story. ■
“Daniel Estell also testified. He is absolutely not a credible witness, and I think that was evident from his demeanor on the stand. But, frankly, I don’t know whether he was there or not. You notice the state didn’t call him as their witness. We could. We didn’t call him to the stand. He’s not a credible witness. I don’t know if he was there or not.
“I do know he has a motive to get up here and fabricate his testimony here today. He wrote a letter that’s been admitted to you. Back in March is when he wrote this implicating the defendant. And then he testified today that other people in the jail started hearing that he was turning state’s evidence against the defendant. So now he comes in and says ‘Oh, I never wrote that and it wasn’t the defendant that I saw do it, it was some masked man that did it.’
“Well, I would submit to you the reason he’s doing that is he’s in jail with the defendant. He doesn’t want to be known as a snitch or state’s evidence while he’s there.
“. . . He has every reason to come in here and every motive to come in here and fabricate a lie to you.
“And remember he doesn’t have a whole lot of detail. He says it was some masked man. Doesn’t even remember the clothing that the man wore, but he sure remembers he was a masked man. Did say he came out of Kizzy’s apartment.
“Well, remember Kizzy had told Nina that the defendant was with her at some point when he was talking about killing [Wynn], I don’t know if he’s partially telling the truth about seeing the defendant come out of Kizzy’s apartment and changing it from defendant to masked man or — I don’t know what to believe, and I don’t think you can know what to believe from Daniel Estell.”
During the instruction conference the State asked the trial court to add to the PIK premeditation instruction, Jury Instruction Number 9, the language “ "premeditation means to have thought over the matter beforehand for any lengdi of time sufficient to form an intent to act.” Defense counsel did not object to the additional language. The jury was also instructed on the lesser offenses of intentional and voluntary manslaughter, second-degree murder, and voluntary manslaughter. Parker was convicted of premeditated first-degree murder and sentenced to life in prison.
Jury Instruction
The trial court instructed that premeditation means “to have thought over the matter beforehand for any length of time sufficient to form an intent to act.” This instruction contains language that is not in the pattern instruction, PIK Crim. 3d 56.04(b). Parker did not object to the proposed instruction. Parker now claims that the trial court erred when it instructed the jury that premeditation means ""to have thought over the matter beforehand for any length of time sufficient to form an intent to act.”
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. 2001 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. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997). Because the defendant failed to object to the instruction given by the trial court, our review must, therefore, be to determinewhether the instruction was clearly erroneous. See State v. Scott, 271 Kan. 103, 111, 21 P.3d 516, cert. denied 120 S. Ct. 630 (2001).
We have examined die premeditation instruction many times and noted that premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct. State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997); State v. Henson, 221 Kan. 635, 645, 562 P.2d 51 (1977). Premeditation is a “state of mind.” State v. Saleem, 267 Kan. 100, 105, 977 P.2d 921 (1999). Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one. In such case, the jury has the right to make the inference. State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978). The evidence of premeditation need not be direct and is often established by circumstantial evidence. Rice, 261 Kan. at 586; State v. Phillips, 252 Kan. 937, 939, 850 P.2d 877 (1993).
Furthermore, premeditation may be inferred from various other circumstances, including: (1) the nature of the weapon used, (2) the 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, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless. Scott, 271 Kan. at 109; Henson, 221 Kan. at 639.
Parker states that there is no evidence of premeditation. He asserts that an argument in the parking lot over money suddenly escalated and resulted in Wynn’s death. He claims that there is no evidence that the lethal shot was fired while Wynn was helpless. We disagree. The State points to evidence that a number of shots were fired after Wynn was helpless on the ground. There was also testimony that Kizzy thought Parker was going to kill Wynn and spoke about her belief to Nina during the hours before the shooting. The shooter deliberately knocked Wynn to the ground before shooting. As the prosecution noted to the jury, the shooter chased Wynn around the vehicle before knocking him to the ground and then opening fire. Two witnesses testified that the shots were fired after the victim was on the ground and that the final shot was fired while Wynn lay on his stomach.
Although Parker asserts that, had the jury been correctly instructed, there would have been a conviction on one of the lesser included offenses, he offers no support for this argument. There was evidence of premeditation. Although it is unfortunate that the instruction given might, in some instances, cause jurors to focus on a temporal component of premeditation, i.e., a concern related with or related to time, rather than on the state of mind of the accused, it is unlikely that any error in the instruction led to jury confusion. The instruction was not clearly erroneous.
Prosecutor’s Misconduct
Parker argues that the prosecutor’s statement to the jury questioning the credibility of the witnesses was of such magnitude that it denied him his constitutional right to a fair trial. Parker contends that because the case hinged on witness testimony, it was error for the prosecutor to offer a personal opinion on the credibility of the witnesses. He asserts that the prosecutor’s comments attacking the credibility of Kizzy and Estell were critical because those witnesses had cast doubt about the identification of Parker as the shooter and changed the result of the trial.
The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error, that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, requiring reversal. State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000); State v. Lumley, 266 Kan. 939, Syl. ¶ 12, 976 P.2d 486 (1999).
Kizzy’s testimony was inconsistent with her prior statements and the testimony of the others. The most important distinction is that, at trial, Kizzy denied telling Nina that Parker was about to kill Wynn. However, Kizzy’s testimony, although inconsistent with the testimony of the others, does not, as Parker argues here, directly or indirectly cast doubt about the identity of Parker as the shooter.
Estell’s testimony was less than credible. Estell was the only witness to testily that the shooter wore a mask. Even if the shooter wore a mask, Estell did not eliminate Parker as the shooter. Estell testified he could not tell the identity of the shooter because of the mask. Estell’s testimony was also impeached a number of times.
Kizzy and Estell were clearly inconsistent during their testimony and their testimony was also inconsistent with the testimony of other witnesses. Although the other witnesses also did not offer identical testimony about the events of the day, their testimony was consistent about tbe identity of Parker as the shooter. Parker’s only defense was to call into question the identification of the murderer.
The State incorrectly argues that there was no expression of the prosecutor’s personal opinion during closing and that the prosecutor’s comments merely highlighted the fact that these witnesses were not credible. The prosecutor’s statements to the jury were comments on the credibility of the witnesses, and the prosecutor surmised to the juiy about the motivations of the witnesses. The prosecutor concluded in her closing argument that she did not believe the witnesses, and therefore, the jury should not believe the witnesses. The State incorrectly argues that the comments were fair.
However, there was sufficient evidence of premeditation and it was unlikely the jury was confused by the instructions or influenced by the prosecutor’s improper closing argument. The prosecutor’s comments on the credibility of the two witnesses did not change the result of the trial.
Affirmed.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The State appeals, pursuant to K.S.A. 2001 Supp. 22-3602, from the district court’s order granting Bradley Schuster’s motion to dismiss the underage driving under influence (DUI) charge against him. The district court concluded that K.S.A. 8-1567a does not establish a criminal offense. The court transferred the case from the Court of Appeals. K.S.A. 20-3018(c).
On March 24, 2001, Bradley Schuster, who was less than 21 years of age, was ticketed for operating a vehicle with a breath alcohol content greater than .02 but less than .08. Arraignment time and place were stated on the complaint. Before the appearance date, Schuster, through counsel, entered a plea of not guilty in writing.
Later, Schuster filed a motion to dismiss the charge of underage DUI in violation of K.S.A. 8-1567a. Relying on Attorney General Opinion No. 97-69, he argued that the statute provides for administrative action by the Kansas Department of Revenue (Revenue) but does not establish a criminal offense. He further stated that “the Kansas Department of Revenue has already commenced and concluded a proceeding pursuant to statute on this matter and the Administrative Judge has rendered her decision so that the State is collaterally estopped from relitigating the issue.”
The district court agreed that K.S.A. 8-1567a does not create a criminal offense. The district court ordered that the charge of underage DUI against Schuster be dismissed.
K.S.A. 8-1567a(a) provides: “It shall be unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or greater.” When Schuster was ticketed in March 2001, subsection (f) of K.S.A. 2000 Supp. 8-1567a provided:
“If a person less than 21 years of age submits to a breath or blood alcohol test requested pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto, and produces a test result of .02 or greater, but less than .08, the person’s driving privileges shall be suspended for one year.”
Subsection (h) of K.S.A. 8-l567a, which prohibits a first occurrence of underage breath or blood alcohol content between .02 and .08 from being considered for insurance purposes, refers to the administrative proceeding:
“Any determination under this section that a person less than 21 years of age had a test result of .02 or greater, but less than .08, and any resulting administrative action upon the person’s driving privileges, upon the first occurrence of such test result and administrative action, shall not be considered by any insurance company in determining the rate charged for any automobile liability insurance policy or whether to cancel any such policy under the provisions of subsection (4)(a) of K.S.A. 40-277 and amendments thereto.”
K.S.A. 8-1015(a) provides:
“When subsection (b)(1) of K.S.A. 8-1014, and amendments thereto, requires or authorizes the division to place restrictions on a person’s driving privileges, the division shall restrict the person’s driving privileges to driving only under the circumstances provided by subsections (a)(1), (2), (3) and (4) of K.S.A. 8-292 and amendments thereto.”
K.S.A. 8-1014(b)(l) provides in part that “if a person fails a test . . ., the division shall . . . [o]n the person’s first occurrence, suspend the person’s driving privileges for 30 days, then restrict the person’s driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days.”
The sole question on appeal is whether K.S.A. 8-1567a establishes a criminal offense. The resolution of this issue raised by the State requires the construction and application of several statutes, which is a question of law over which our review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan 875, 879, 953 P.2d 1027 (1998).
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory 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.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
“The rule of strict construction means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
In 1997, the Attorney General issued an opinion regarding enforcement of 8-1567a. The Attorney General concluded that it is not a criminal statute and that proceedings under it are civil rather than criminal in nature. Att’y Gen. Op. No. 97-69, p. 4. The Attorney General further concluded that courts do not have authority to suspend driving privileges under the statute: “[I]t is our opinion that the hearing contemplated by K.S.A. 1996 Supp. 8-1567a is an administrative hearing before the Division of Motor Vehicles rather than a judicial proceeding before a Court.” Att’y Gen. Op. No. 97-69, p. 5.
The legislative history recounted in the Attorney General’s opinion supports the conclusion that enforcement proceedings are civil and administrative. The opinion states:
“The Kansas Legislature took up the issue of ‘zero tolerance’ in the 1996 Session in order to satisfy the federal requirement set forth in the National Highway System Designation Act, now codified at 23 U.S.C.A. § 161(a)(3). This federal statute requires each state to ‘enact and enforce a law that considers an individual under the age of 21 who has a blood alcohol concentration of 0.02 percent or greater while operating a motor vehicle in the State to be driving while intoxicated or driving under the influence of alcohol.’ Failure to comply with this requirement results in the withholding of certain federal highway construction funds. 23 U.S.C.A. § 161(a)(1) and (2). As originally introduced, the bill seeking to bring the State into compliance with the ‘zero tolerance’ requirement amended K.S.A. 8-1567(a)(l) and (2) to make a blood or breath alcohol concentration of .02 in persons less than 21 years of age a violation of that statute subject to the criminal penalties of subsections (d), (e) and (f) of that statute. 1996 H.B. 2603, as introduced. However, the House Committee adopted an amendment intended to ‘strike all criminal provisions in the bill and only have the administrative suspension apply.’ Minutes, House Committee on Judiciary, February 22, 1996. The Senate Committee subsequently adopted a substitute bill based on concerns raised by the Kansas Department of Transportation that H.B. 2603, as amended by the House Committee, would not satisfy the federal law requirements. Minutes, Senate Committee on Judiciary, March 13, 1996; Journal of the Senate 1596, March 21, 1996. For our purposes, the main distinction between the two bills was that the Senate substitute contained a new section using the language ‘[i]t shall be unlawful’ for any person less than 21 years of age to operate or attempt to operate a vehicle with a breath or blood alcohol content of .02 or greater. S. Sub. for H.B. 2603, § 1. However, there was no mention in the minutes that the Senate intended to reinsert any criminal sanctions for violation of the law, and the amendments to K.S.A. 8-1567 were not made a part of the Senate substitute bill. [While not available at the time K.S.A. 1996 Supp. 8-1567a was being debated, the federal regulations make clear that criminal sanctions are not required for compliance with the federal ‘zero tolerance’ requirement. 23 C.F.R. § 1210.4(c) (revised as of April 1,1997).]” Att’y Gen. Op. No. 97-69, pp. 4-5.
The Court of Appeals in Badgley v. Kansas Driver Control Bureau, 27 Kan. App. 2d 557, Syl. ¶ 1, 7 P.3d 326, rev. denied 270 Kan. 897 (2000), started from the premise that the Kansas Department of Revenue, rather than the courts, is authorized to restrict driving privileges. The Court of Appeals stated that “[u]nder K.S.A. 1999 Supp. 8-1015, only the Kansas Department of Revenue is authorized to place restrictions on a person’s driving privileges.” 27 Kan. App. 2d 557, Syl. ¶ 1. The question was whether on an appeal of the administrative action tire district court has jurisdiction to alter the restrictions. The Court of Appeals concluded that “[t]he district court does not have jurisdiction to modify the restrictions imposed on a person’s driving privileges by the Kansas Department of Revenue under K.S.A. 1999 Supp. 8-1015.” 27 Kan. App. 2d 557, Syl. ¶ 2.
In Badgley, the district court based its decision on the rationale of Beckley v. Motor Vehicle Department, 197 Kan. 289, 294, 416 P.2d 750 (1966). The Court of Appeals in Badgley quoted with approval the following from the district court’s decision:
“ ‘In Beckley, the District Court found that a test refusal had occurred, but entered an order reducing the period of suspension to thirty (30) days as opposed to the ninety (90) day suspension imposed by the Department. The Supreme Court reversed, holding that the legislature intended that the Court be limited to a judicial determination of the factual basis upon which the action of the Department is predicated. The Supreme Court stated its rationale at page 294 as follows:
“If the courts were permitted to modify the suspension or revocation of a driver’s license ordered by the motor vehicle department by either enlarging or reducing the period, the effectiveness of the administrative body will be destroyed. The administrative body would make initial recommendations to the Court, which would rehear the matter and finally determine the length of suspension or revocation. This could result in confusion, reduplication of effort, and inconsistent penalties administered over the state. The Motor Vehicle Department was initially set up for the purpose of avoiding such problems.” ’ (Emphasis added.)” 27 Kan. at 559.
State v. Wick, 28 Kan. App. 2d 888, 24 P.3d 158 (2001), was an interlocutory appeal by the State from the district court’s order suppressing the results of Wick’s blood alcohol test. Wick, who was under the age of 21, was charged with involuntary manslaughter while operating a vehicle with a blood alcohol concentration of .08 in violation of K.S.A. 1998 Supp. 21-3442. Wick was read an implied consent advisory, but the district court suppressed the test result on the ground that Wick was not read the implied consent advisory applicable to persons under the age of 21, as required by K.S.A. 1998 Supp. 8-1567a. The Court of Appeals reversed. It reasoned that 8-1567a, which proscribes underage breath or blood alcohol levels between .02 and .08, did not apply where Wick’s blood alcohol level was .10. The Court of Appeals concluded that the DUI statutes not limited to drivers under 21 applied.
As to K.S.A. 1998 Supp. 8-1567a, the Court of Appeals stated:
“The statute’s placement within the traffic code raises a reasonable argument that criminal penalties are to apply to a violation of the conduct prohibited therein. The statute was placed in the general proximity of K.S.A. 1998 Supp. 8-1567 which clearly establishes criminal penalties for driving under the influence of alcohol, rather than with the civil penalties found in K.S.A. 1998 Supp. 8-1002.
“In contrast, while the language ofK S. A. 1998 Supp. 8-1567'a indicates criminal prohibition of the conduct specified therein, the penalties provided by the statute do not constitute criminal penalties but merely civil restrictions on driving privileges, evidencing the legislature’s intent to provide only administrative penalties for violation of the statute. See State v. Mertz, 258 Kan. 745, 758-61, 907 P.2d 847 (1995) (holding that suspension of a driver’s license for driving under the influence of alcohol is a civil remedy designed to protect the public, not a criminal penalty designed to punish the driver).
“By promulgating a statutory provision to govern minor drivers who have consumed alcohol, we conclude, the legislature intended to maintain existing provisions and sanctions. The statute explicitly states this intent: ‘Except where there is a conflict between this section and K.S.A. 8-1001 and 8-1002 and amendments thereto, the provisions of K.S.A. 8-1001 and 8-1002 and amendments thereto, shall be applicable to proceedings under this section.’ K.S.A. 1998 Supp. 8-1567a (g>-
“Logic dictates that K.S.A. 1998 Supp. 8-1567a was designed to cover conduct not previously covered in K.S.A. 1998 Supp. 8-1002 and K.S.A. 1998 Supp. 8-1567. The statute discusses only the penalties to be applied to persons under 21 years of age for breath or blood alcohol concentrations between .02 and .08, not the penalty to apply to persons whose breath or blood alcohol concentration exceeds .08. See K.S.A. 1998 Supp. 8-1567a (d), (e), (f), and (h).” (Emphasis added.) 27 Kan. App. 2d at 893-94.
The State argues that the legislature’s intent to provide criminal penalties is shown by the placement of the statute between 8-1567 and 8-1568 and by the language, “[i]t shall be unlawful.”
With regard to placement, the State suggests that had the legislature intended only civil penalties, it would have amended K S.A. 8-1002 or added an 8-1002a instead of adding 8-1567a. The legislature is not involved in the placement or numbering of statutes, and it is long established that “[t]he placement of a law in a particular location in the General Statutes by the compiler is not persuasive as to the intent of the legislature which enacted the statute.” Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. ¶ 3, 610 P.2d 1107 (1980).
At oral argument, the State took a different tact to support its position. Arguing that by failing to designate the violation of K.S.A. 8-1567a as a felony or traffic violation, “it becomes a misdemeanor” by operation of K.S.A. 2001 Supp. 21-3105, and pursuant to K.S.A. 2001 Supp. 21-4502 has the same penalty as a class C misdemeanor. K.S.A. 2001 Supp. 21-3105 first defines a crime as “an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction, ... a fine is authorized.” That is followed by classifying crimes as (1) a felony, (2) traffic infraction, (3) cigarette or tobacco infraction, and (4) “all other crimes are misdemeanors.” According to the State, K.S.A. 2001 Supp. 21-3105 makes all crimes misdemeanors if not designated as a felony or traffic violation. Not only does the State add something not found in the statute, it ignores the definition of a crime in the first part of K.S.A. 2001 Supp. 21-3105. K.S.A. 8-1567a does not meet that definition, and thus it cannot be classified as a misdemeanor. K.S.A. 2001 Supp. 21-4502(d) provides:
“Unclassified misdemeanors, which shall include all crimes declared to be misdemeanors without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime; if no penalty is provided in such law, the sentence shall be the same penalty as provided herein for a class C misdemeanor.”
This subsection is not applicable since K.S.A. 8-1567a is not a crime nor is it “declared to be a misdemeanor without specification as to class.”
The Attorney General’s opinion thoroughly and convincingly examines the reason for the “[i]t shall be unlawful” language in 8-1567a. The legislative history shows that the language was part of a Senate substitute bill for H.B. 2603, which was adopted by the Senate due to KDOT’s concerns that the House bill would not satisfy federal requirements. Att’y Gen. Op. No. 97-69, p. 4. “However, there was no mention in the minutes that the Senate intended to reinsert any criminal sanctions for violation of the law, and the amendments to K.S.A. 8-1567 were not made a part of the Senate substitute bill.” Att’y Gen. Op. No. 97-69, p. 5. K.S.A. 8-1567a does not establish a criminal offense, and the district court did not err in dismissing the underage DUI charge against Schuster.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, C.J.:
Gerald L. Cope was convicted in a jury trial of making a criminal threat (K.S.A. 21-3419[a][l]). He appealed therefrom, raising three issues: (1) constitutionality of K.S.A. 21-3419(a)(1); (2) sufficiency of the evidence supporting his conviction; and (3) alleged error in the trial court’s denial of his motion to disqualify the Johnson County District Attorney’s office. The Court of Appeals: (1) upheld the constitutionality of the statute; (2) held the evidence to be insufficient, reversing the conviction; and (3) declined to address the disqualification issue. State v. Cope, 29 Kan. App. 2d 481, 29 P.3d 974 (2001). The matter is before us on the State’s petition for review with the sole issue being the propriety of the Court of Appeals’ reversal of the conviction on the grounds of the insufficiency of the evidence.
STANDARD OF REVIEW
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 a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
FACTS
Given the standard of review herein, the facts will be stated in the light most favorable to the prosecution. Defendant and his wife were divorced in 1998 in the Johnson County District Court. In that proceeding, the wife received the family residence and sole custody of their children, and defendant was denied the right of visitation. In April 1999, defendant was employed as a cement truck driver. He had a conversation with another driver, Jeremy Walker, with the same company while at a Gardner, Kansas, construction site. Defendant advised Walker how angry he was over the loss of his wife and family in the divorce proceeding and that he was going to war with Johnson County. He elaborated that he was going to place C-4 explosives around the Johnson County courthouse and indicated automatic weaponry would also be used. Walker was concerned about defendant’s comments and, within a day (April 29, 1999), relayed them to another coworker, Charles Wiegand, whom he knew to be a former police officer. Wiegand sought out defendant and talked to him about his comments to Walker. Defendant basically reaffirmed tire statements he made to Walker.
On April 30, 1999, Wiegand contacted John Resman, a lieutenant with the Johnson County Sheriff s Department. He relayed the substance of his conversations with Walker and defendant. Wiegand also advised that defendant was not taking his prescribed antidepressant medication. That evening, Wiegand went to defendant’s residence, ostensibly to look at a truck defendant had for sale. The matter of defendant’s rage against those in the Johnson County courthouse came up again and defendant stated he was stockpiling money with which to buy a Chinese SKS assault rifle with armor piercing shells. Further, he knew where he could buy what he needed to carry out the assault. Defendant advised he had made up his mind to proceed with the attack. He further advised that he knew he would die but he was going “to whack as many people as possible.” During the conversation defendant became visibly upset, cried, and “bobbed up and down.” Defendant advised that Johnson County had robbed him of any reason to live.
The next morning, Wiegand relayed to Resman the conversation with defendant which had occurred the previous night. Both Wiegand and Resman were very concerned that defendant posed a real threat to courthouse personnel. Courthouse security was advised of the situation, and photographs of defendant and his vehicle were distributed to security. Defendant was placed under surveillance. He was arrested on May 4,1999, and charged with making a criminal threat in violation of K.S.A. 21-3419. Initially, defendant was charged as follows:
“That on or about the 29th day of April 1999, in the County of Johnson, State of Kansas, Gerald L. Cope did then and there unlawfully, feloniously, and willfully communicate a threat to commit violence with the intent to cause the evacuation of any building, place, assembly, or facility of transportation, to-wit: the Johnson County Courthouse . . . , a severity level 9 person felony, in violation of K.S.A. 21-3419; K.S.A. 21-4704 and K.S.A. 21-4707.”
K.S.A. 21-3419, the criminal threat statute, reads as follows:
“(a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation; or
(2) adulterate or contaminate any food, beverage, drug or public water supply. “(b) A criminal threat is a severity level 9, person felony.
“(c) As used in this section, ‘threat’ includes any statement that one has committed any action described by subsection (a)(1) or (2).”
(NOTE: The other two statutes referenced in the complaint relate to sentencing.)
Prior to trial, Cope filed a motion to have the judge and the Johnson County District Attorney’s office recused from the case. The district court denied the request to recuse the district attor ney’s office. The judge recused, and a judge from a different judicial district heard the case. Also, the district court denied Cope’s motion for dismissal grounded on a claim the statute was unconstitutionally vague and overbroad.
The State amended the complaint and proceeded to trial on only one theory of criminal threat as proscribed by K.S.A. 21-3419. In accordance with the amended complaint, the district court instructed the jury on this theory as follows:
“The defendant, Gerald L. Cope, is charged with criminal threat. Mr. Cope pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Mr. Cope threatened to commit violence;
“2. That such threat was communicated in reckless disregard of the risk of causing the evacuation of the Johnson County Courthouse; and
“3. That this act occurred on or about the 29th day of April, 1999 . . . .” (Emphasis added.)
The jury did not receive instruction on the original theory that such threat was communicated with the intent to cause the evacuation of the building.
The jury found Cope guilty of one count of criminal threat. The district court sentenced him to 24 months’ probation with an underlying prison term of 9 months.
In its opinion herein, the Court of Appeals states in pertinent part:
“Cope contends that he never intended his words to be communicated to anyone at the Johnson County courthouse, no one was terrorized by the statements, and the evidence does not support the inference that he made statements in order to cause an evacuation of the courthouse.
“Cope admitted that he told Walker he would ‘probably end up having to take them to war, go to war with them.’ Cope also testified that he stated he ‘could understand in retrospect to the things that happened in Columbine.’ Cope testified that he told Wiegand he could obtain an SKS rifle with armor piercing ammunition. Cope also admitted that he told Wiegand he could ‘use all the money [he] could get.’
“Cope concedes that he could legitimately be punished for communicating with the intent that his words cause panic. However, he argues that punishing reckless speech criminalizes the expression of an idea not meant to be expressed in a way that would cause terror or an evacuation.
“Cope’s comments were made to Walker and Wiegand; however, his threats were directed at the courthouse, and by inference, those who would be in the courthouse. K.S.A. 21-3419 does not require, as an element of the offense, that the defendant know his or her threat would be communicated to those being terrorized. It is sufficient if there is an intent to terrorize or an act in reckless disregard of causing such terror. Wright, 259 Kan. at 122.
“The question is whether there was sufficient evidence that Cope intended to cause the evacuation of the Johnson County courthouse, or whether his statements were made in reckless disregard of the risk of causing evacuation of the courthouse.
“There is no doubt that Cope was distraught and reckless in making the statements about Johnson County and the Johnson County courthouse. Communicated intent can be inferred from physical acts as well as verbal statements. See State v. Howell & Taylor, 226 Kan. 511, 515, 601 P.2d 1141 (1979); State v. Miller, 6 Kan App. 2d 432, 435, 629 P.2d 748 (1981). The threat, however, must be a serious threat as distinguished from idle talk or jest. See State v. Phelps, 266 Kan. 185, 196, 967 P.2d 304 (1998).
“After learning of Cope’s statements, law enforcement officers obtained a search warrant and searched Cope’s home. They found only one gun, which was legally possessed. Cope was followed by law enforcement officers. They observed nothing to indicate that Cope intended to carry out his threats. His statements did not cause an evacuation, and there is no evidence that the statements were made in reckless disregard of the risk of causing an evacuation of the courthouse. There is no evidence that he terrorized anyone. Cope’s statements do not satisfy the requirement of substantial competent evidence to support a violation of K.S.A. 21-3419. Cope’s conviction is overturned.” State v. Cope, 29 Kan. App. 2d at 486-88.
We disagree with some aspects of this analysis and the result reached therein.
First, the Court of Appeals’ opinion states the issue as being:
“The question is whether there was sufficient evidence that Cope intended to cause the evacuation of the Johnson County courthouse, or whether his statements were made in reckless disregard of the risk of causing evacuation of the courthouse.” 29 Kan. App. 2d at 487.
The case was tried on the theory that the statements were made in reckless disregard of the risk of causing evacuation — consistent with the allegation of the amended complaint and closing argument. “Intention to cause evacuation” was not and is not an issue in this case. The opinion’s analysis spends little time on what defendant said or the circumstances thereof. More space is devoted to what occurred after the statements were made, such as only one registered gun being found in the execution of the search warrant and the fact the courthouse was not evacuated. The opinion then flatly states: “[T]here is no evidence that the statements were made in reckless disregard of the risk of causing an evacuation of the courthouse.” 29 Kan. App. 2d at 487. That was the principal question for the jury to determine. The opinion goes on to state: “There is no evidence he terrorized anyone,” even though this was not an element of the offense as tried. 29 Kan. App. 2d at 487.
As previously noted, the State relied upon the conversation between defendant and Wiegand which occurred at defendant’s home as the threat giving rise to this charge. The facts that only one gun was found during the later execution of the search warrant or that no evacuation of the courthouse actually occurred have no relevance to the issue before us.
Defendant contends the Court of Appeals was correct in finding that there was no evidence his statements were made in reckless disregard of the risk of causing an evacuation of the courthouse. Regardless of whether the threat is real or even capable of being carried out, it is the reaction desired by the communicator, or in this case, the communicator’s reckless disregard of the possibility of creating that reaction which constitutes the offense. Compare State v. Miller, 6 Kan. App. 2d 432, 435, 629 P.2d 748 (1981) (case brought on theory communicator intended to terrorize, rather than reckless disregard of evacuation).
In this case, the determination of whether the statements were made in reckless disregard of the risk of causing an evacuation of the courthouse was the primary issue for the jury to decide. In making this determination the totality of the circumstances, including the relationship of the individuals involved, must be considered.
Defendant, Wiegand, and Walker were cement truck drivers for the same company. Defendant had only been an employee for a few weeks when his conversation with Walker occurred. This conversation occurred on a job site. There is no indication the men were friends. Defendant’s deep-seated rage apparently bubbled to the surface at this date and place because it was near the family residence defendant had lost in the divorce proceeding. Defendant talked about placing bombs around the Johnson County courthouse and launching an attack on it with automatic weaponry. He indicated the attack would occur soon. This conversation alarmed Walker, who told Wiegand because Wiegand had previously been a-police officer in Illinois. Wiegand sought out defendant in the company break room, and defendant in essence, repeated what he said earlier to Walker. Additionally, Wiegand was told by defendant that he was not taking his antidepressant medication. Wiegand was concerned that a serious risk of violence was present and contacted Resman, a lieutenant with the Johnson County Sheriff s Department, who also took the matter very seriously.
That evening, Wiegand went to the defendant’s home, ostensibly to look at a truck, but really to talk to defendant further about his threats against the courthouse. Resman had asked him to wear a wire for the meeting, but Wiegand declined out of fear for his family’s safety. It is this conversation upon which the State relied as the threat herein. Defendant elaborated, telling Wiegand he expected to die in the assault on the courthouse, but intended “to whack as many people as possible.” In the account, defendant came across as an angry, desperate man on the edge of losing all control. There is nothing in the circumstances or actual statements made other than defendant’s testimony at trial that supports his contention the whole thing was a joke on his part. This conversation was relayed to Resman, who took measures to alert courthouse security as to the risk presented by defendant and caused defendant to be put under surveillance. The charge herein resulted.
The dissent appears concerned that: (1) Wiegand initiated the conversation concerning the courthouse occurring at Cope’s residence; and (2) subsequent investigations showed no incriminating evidence of Cope’s capability to carry out his threats. These concerns lack substance in determining the issue before us. Wiegand did not implant any violent ideas into Cope’s thought processes. Wiegand was there because of Cope’s prior threats against the courthouse. Presumably, if Cope had indicated his earlier remarks were not serious, that would have been the end of the incident. Instead, Cope elaborated, stating a plan to shoot as many courthouse personnel as possible.
Further, the fact that subsequent investigations revealed no evidence of Cope’s capability to carry out his threats is not a factor in determining whether or not the threat was made in “reckless disregard of the risk.”
Under the totality of the circumstances herein, we are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
We affirm the conviction on the sole issue before us, the sufficiency of the evidence supporting the conviction. That portion of the Court of Appeals’ opinion holding otherwise is reversed. The case is remanded to the Court of Appeals to consider the issue not addressed in its opinion, namely, the trial court’s refusal to disqualify the Johnson County District Attorney’s office from prosecuting this case.
As to the sole issue before us, the judgment of the district court is affirmed and the Court of Appeals’ decision is reversed. The case is remanded to the Court of Appeals for further proceedings.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Lockett, J.;
Homebuyers John and Frances McBeth appeal the district court’s order holding that the builder, Blair Construction, Inc. (BCI), was entitled to an in personam and in rem judgment. Homebuyers challenge the enforceability of a promissory note and a second mortgage entered into after the delivery of the warranty deed to homebuyers and the trial court’s award of prejudgment interest to the builder. Builder cross-appeals, alleging the trial court erred in reducing the amount of the homebuyers’ liability.
Bill Blair, the president of BCI, and John McBeth have known each other for approximately 25 years. On March 18, 1997, John McBeth and Frances McBeth entered into a building contract with BCI for the construction of their home. The contract contained the following provisions:
“6. [The McBeths] shall pay [BCI] Two hundred eighty-five thousand and no/100 ($285,000.00) for the residence as follows: Upon signing this agreement, One thousand and no/100 ($1,000.00) an earnest money deposit. Before construction on the residence begins, Forty-eight thousand five hundred and no/100 ($48,500.00) as a further earnest money deposit; the balance of the purchase price in cash at closing.
“7. After signing this agreement, [the McBeths] and [BCI] may agree in writing to alterations in the plan of specifications of the residence. These alterations will be done in the form of a ‘change order’. . . .
‘‘For these alterations, at closing [the McBeths] shall pay [BCI] an additional amount subsequently agreed upon, or if no amount is otherwise agreed upon, [the McBeths] shall pay [BCI] builder’s cost plus Fifteen Percent (15%). . . .
“13. The delivery to and acceptance of the deed by [the McBeths] at the time of closing of title hereunder shall be deemed to constitute full compliance by [BCI] with terms of this agreement. None of the terms of this agreement survive such delivery except those terms which this agreement becomes null and void [sic],
“16. This agreement contains the entire agreement between the parties hereto, and no . . . officer of the parities [sic] hereto has authority to make, or has made, any statement, representation or agreement, oral or written, in connection herewith that modifies, adds to, or changes the terms of this agreement, that no modification of this agreement shall be binding upon any of the parities [sic] hereto unless the same be executed in writing.” (Emphasis added.)
An addendum to the building contract, executed that same day, incorporated the specifications and options into the contract and stated that the real estate commission of $14,825 and the builder’s commission of $22,240 were included in the contract price. The addendum also contained the following provision:
“4. If price of home exceeds the contract price, there will be no commission paid to the Realtors or Builder for the overages.”
Two additional addendums to the contract were also entered into by BCI and the McBeths in late March 1997. These addendums amended the building contract to provide for BCI to obtain the construction loan, for the McBeths to be responsible for the loan fees and accrued interest on the construction loan, and for a reduction of the earnest money deposit. The building contract had originally provided for the McBeths to obtain the financing for the construction.
A change order in the amount of $6,615.00 was completed and signed by John McBeth and Blair in May 1997. During construction, BCI sold a 4-foot swath of the property to an adjacent property owner with John’s permission. BCI credited the money received to the McBeths. Before construction was completed, John agreed to purchase a big screen television for $2,300 from Blair. Throughout the construction, BCI sent the McBeths monthly cost comparisons sheets of the McBeths’ home and the model home. A final change order in the amount of $10,093.01 was prepared the day before closing, but was not presented to the McBeths or anyone else prior to or at closing.
On October 24, 1997, the McBeths tendered the remainder of the $285,000 on the building contract to BCI, and BCI conveyed a joint tenancy warranty deed to the McBeths. The deed contained no reference to any additional amount owed BCI. Blair testified that BCI closes on approximately 30 to 35 new homes per year and that he knew the purpose of closing was to settle a contract.
On December 2, 1997, Blair went to the McBeths’ home to discuss the overages that were incurred during construction. The McBeths executed a promissory note in the amount of $45,171.47 in favor of BCI, with interest accruing at the rate of ten percent per year, and granted BCI a second mortgage on the property for nearly the entire value of the note. We note that the mortgage granted to BCI was $129.11 less than the value of the note. According to Blair, this difference was attributable to mortgage registration tax and filing fees. The first of three payments on the note was due December 1, 1998.
Since the note and mortgage were executed, the only payments attributable to the McBeths on the note were a $200 credit by Blair for an office chair the McBeths gave Blair and a $968.99 overcharge credit for cabinets placed in the home.
BCI filed suit against the McBeths in September 1999 for $44,483, plus interest. BCI also named the Board of County Commissioners of Sedgwick County and Capitol Federal Savings Bank (Capitol) as defendants in the suit against the McBeths because of potential claims they might have against the property. The Board of County Commissioners answered BCI’s petition, noting that no taxes were due at the time that would constitute a lien on the real property. Capitol answered the petition and requested that the district court enter an order declaring it the first lienholder on the property. By court order dated January 31, 2000, Capitol was declared the superior lienholder on the property, subject only to unpaid real estate taxes. Neither of these parties are the subject of this appeal.
On March 2, 2000, the matter was tried to the court. At trial, Blair testified that John McBeth stopped by frequently during the building process to discuss changes in the construction of the home. The normal procedure at BCI is to have the client sign a change order when the client desires to make a change. Only one change order was prepared and signed regarding the McBeths’ house. The change order did not include all the changes John had requested. Blair testified that he sent cost comparisons to the McBeths to keep them apprised of the differences in cost between their home and the model home. The agreement between BCI and the McBeths was to build a home similar to the model home. The model home was not referenced in the building contract.
Blair testified that prior to closing he spoke with John regarding Blair’s concern as to the hard costs (actual costs to build the house) of the McBeths’ house exceeding the hard costs of the model home. Blair testified that when he provided John with a summary of the overages 1 to 2 weeks before closing, John had agreed to pay all the overages. John had informed him that he did not have the money to pay for the overages at the time, but agreed to Blair’s offer to loan John the money in return for a second mortgage and a personal note. Blair testified that a promissory note was not executed prior to closing because all bills were not in at that time and he could not determine the total cost. At closing, Blair was aware the overages were approximately $40,000.
According to Blair, the McBeths originally planned to come to the office and sign the promissory note, mortgage, and estimate of closing costs, but later requested Blair come to their house. Blair testified that when he discussed the amount and basis for the overages at their home, the McBeths had no questions. Blair stated it was not until the summer of 1998 that John McBeth alleged he had been overcharged. Blair claims this occurred around the same time that John had looked into refinancing his house to pay off the note and the first mortgage. The refinancing never took place.
BCI admitted there was a $107.53 error in the value of the promissory note. BCI’s bookkeeper, after reducing the note by this error, the value of the chair, and the value of the overcharge on the cabinets, claimed the principle due on the note was $44,375.47. The amount of accrued interest as of the date of trial was claimed to be $9,495.13. Thus, BCI claimed the McBeths owed a total amount under the note of $53,870.60, with $12.16 accruing per day.
John McBeth testified and admitted he owed $2,300 for the television he purchased from Blair because it was “personal.” John admitted he had signed the promissory note but had no recollection of doing so. Because he trusted Blair, and Blair had implied that the McBeths were responsible for paying for the overages, John thought he owed Blair and should pay him. John testified he determined he had been overcharged shortly after the note and mortgage were executed. John stated that Blair knew, before they entered into the building contract, that the McBeths only had $285,000 to put into the house. John testified he viewed the cost comparison sheets as showing that BCI was staying within the same cost framework as the model home and denied that the cost comparisons had been sent for the McBeths to track the extra expenses being incurred on their home. John testified they (the McBeths) intended that the sale of the 4-foot swath of the property would pay for the changes they had requested. John admitted that every change to his house from that of the model home was made at his request.
John denied agreeing to any modifications to the building contract that were not in writing and denied entering into an agreement with Blair prior to closing to execute a note or second mortgage to BCI. John testified that at the time of closing he was only aware of his additional obligation for the television and unaware of any overages that Blair claimed the McBeths owed BCI. John testified it was not until after closing that Blair informed the McBeths he had invoices to support the amount he was claiming the Mc-Beths owed. John testified that BCI has never provided the McBeths with these invoices or with a comparison of actual amounts spent and the allowance amounts set out in the specifications and options.
On October 25, 2000, the trial court entered a journal entry judgment finding the McBeths were obligated to BCI and that as of July 18, 2000, the total amount was $41,324.10 ($33,005.02 in principle and $8,319.08 in accrued interest), with interest accruing thereafter at a rate of $9.05 per day. The trial court granted BCI an in rem and in personam judgment against the McBeths in that amount.
The basis for the trial court’s reduction in the liability of the McBeths to BCI from that of the promissory note is not set out in the record. The district court file indicates a hearing and entry of judgment occured on July 17, 2000, with BCI’s counsel ordered to prepare a journal entry reflecting the court’s action. The McBeths objected to BCI’s proposed journal entry, claiming the trial judge, in his oral ruling, had refused to enter judgment on the note and mortgage, reduced BCI’s builders fee by one-half ($11,120), and directed entry of judgment against the McBeths on the balance. The McBeths contend the journal entry should only have reflected a money judgment against the McBeths, the judgment should not have included prejudgment interest, the journal entry should have quieted title in the McBeths from the second mortgage, and the journal entry was mathematically incorrect because it failed to give the McBeths credit for the value of the sale of the 4-foot swath of land.
According to the McBeths’ reply brief, the July 17, 2000, judgment was entered during a conference in chambers and off the record. The McBeths contend the trial judge did not articulate a basis for his decision but directed BCI’s counsel to prepare a journal entry of judgment. The McBeths contend that following their objection to the proposed journal entry, but prior to signing the journal entry, the trial judge suffered a heart attack that led to his retirement from the bench. BCI’s proposed journal entry was then signed, without further explanation, by another Sedgwick County judge. BCI provides no explanation for the inadequate record.
Timely notices of appeal and cross-appeal were filed. This court has jurisdiction over the case by transfer pursuant to K.S.A. 20-3018(c).
ENFORCEABILITY OF PROMISSORY NOTE AND MORTGAGE
The interpretation and legal effect of written documents are matters of law over which this court has unlimited review. City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 153, 959 P.2d 894 (1998).
The McBeths contend that under the doctrine of merger the promissoiy note and mortgage are unenforceable. They assert that all agreements in the building contract merged into the deed and were resolved when BCI deeded the property to the McBeths.
Doctrine of Merger
It is a general rule of law applicable to all contracts, including deeds, that prior stipulations and agreements are merged into the final and formal contract or deed executed by the parties. When a deed is delivered and accepted as performance of a contract to convey, the contract is presumed to be merged into the deed. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, Syl. ¶ 12, 27 P.3d 1 (2001); Webb v. Graham, 212 Kan. 364, 365-66, 510 P.2d 1195 (1973); Griffith v. Byers Construction Co., 212 Kan. 65, 68, 510 P.2d 198 (1973); Linville v. Nance Development Co., 180 Kan. 379, 384, 304 P.2d 453 (1956); Palmer v. The Land & Power Co., 172 Kan. 231, 237, 239 P.2d 960 (1952). The merger blends the rights of a creditor and debtor, resulting in the extinguishment of the creditor s right to collect a prior debt.
Merger is not absolute, however, and whether merger occurs ultimately depends upon the intention of the parties. Intent is a question of fact to be determined from examining the instruments and from the facts and circumstances surrounding their execution. Webb, 212 Kan. at 366; Linville, 180 Kan. at 384. An example of this occurred in Linville, where the facts of the case overcame the presumption of merger when, following entry into a contract of sale that did not provide for the seller to invade the buyer’s lot and dig a ditch, the buyer relied upon the promise of the seller to fill in the ditch and accepted the deed. 180 Kan. at 384.
An exception to the presumption of merger- that has been recognized in Kansas and is necessarily based upon the intention of the parties is that of collateral agreements. In Webb, the real estate contract contained a clause requiring the buyer to pay paving assessments in the future. The deed, however, contained no such provision. The Webb court held that although there is a presumption that this covenant in the contract became a part of the deed, when the covenant is intended as an independent collateral agreement between the parties there is no merger. 212 Kan. at 366-67.
There was evidence in the record supporting the district court’s determination that the parties did not intend for the merger doctrine to apply. Blair testified that John McBeth, whom Blair had known for 25 years, promised to pay for the overages and that, after telling Blair he did not have the money to pay for the overages, had agreed to Blair’s offer to loan him the money in exchange for a personal note and second mortgage. Blair testified:
“A.: I had a summary, yes, but all the bills weren’t in yet, and John agreed — John agreed to pay me all the overages no matter what the house cost exactly. We had set a guideline to go abide by, that they exceeded it. He was going to pay it; as simple as that. That’s why I agreed to the second mortgage and personal note. If — or I feel he wouldn’t have signed it if he didn’t agree to do it.
“Q. [Mr. Hoch, defense counsel]: Why didn’t you ask him to sign an addendum to the building contract?
“A.: He didn’t have the money, per John, so I loaned him the money.
“Q.: Why didn’t you ask him in October to sign a promissory note?
“A.: I did, but we couldn’t make it out until the bills came in, but he agreed he was going to pay for all the overages. But until all the bills were in, I couldn’t determine how much this all was going to be.”
The fact the McBeths later signed the promissory note and a second mortgage provides evidence to support BCI’s claim that the McBeths had agreed to pay the overages when they accepted the warranty deed.
The trial judge found the testimony of Blair to be more credible. Appellate courts will not reweigh the evidence or judge the credibility of witnesses. Griffin v. Dale Willey Pontiac-Cadillac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).
Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the factual findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. “Substantial evidence” is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
' In all contested'matters submitted to a judge without a jury, including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 2001 Supp. 60-252 and the legal principles controlling the decision. If evidence was admitted over proper objection and the judge did not state in his or her reasons for the decision that such evidence, specified with particularity, was not considered, then it shall be presumed in all subsequent proceedings that the evidence was considered by the judge and entered into his or her decision. Supreme Court Rule 165 (2001 Kan. Ct. R. Annot. 200).
The McBeths objected to the proposed journal entry submitted by BCI, claiming that BCI was only entitled to a money judgment against the McBeths, BCI was not entitled to prejudgment interest, title should be quieted in the McBeths from the second mortgage, and the amount of the judgment was incorrectly calculated. The record does not indicate that the McBeths specifically objected to the inadequacy of the findings of fact and conclusions of law in the proposed journal entry. There was also no objection lodged by the McBeths following entry of the final judgment by the trial court, nor do the McBeths directly claim that the findings of fact and conclusions of law were inadequate on appeal.
We have recognized that meaningful appellate review is precluded where a trial court’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or basis for the court’s findings. However, in the absence of any objection to the inadequacy of the trial court’s ruling, the reviewing court will presume the trial court found all facts necessary to support the judgment and an omission in findings will not be considered. Tucker, 253 Kan. at 378. We, therefore, presume the trial court found all facts necessary to support the judgment.
The record in this case supports judgment for BCI because the facts overcame the presumption of merger. There was consideration to support the promissoiy note granted by the McBeths to BCI. Thus, the trial court did not err in finding that BCI was entitled to recover from the McBeths.
Mortgage
It is well established that there are no special formalities required in order to create a mortgage. Garnett State Savings Bank v. Tush, 232 Kan. 447, 453, 657 P.2d 508 (1983); Rex v. Warner, 183 Kan. 763, 767, 332 P.2d 572 (1958); Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955); First Nat'l Bank of Anthony v. Dunning, 18 Kan. App. 2d 518, 523, 855 P. 2d 493, rev. denied 253 Kan. 857 (1993). “All that is necessary is that there be a debt and that the instrument creates a lien on real property as security for the payment of the debt.” Songster, 178 Kan. at 680.
The doctrine of merger did not operate and the promissory note was enforceable. This renders the McBeths’ assertion that the mortgage was unenforceable because there was no valid debt meritless.
PREJUDGMENT INTEREST
The McBeths contend that because the amount due was not liquidated prior to the trial court’s entry of judgment, the trial court erred in awarding BCI prejudgment interest.
Prejudgment interest is governed by K.S.A. 16-201: “Creditors shall be allowed to receive interest at the rate of ten percent per annum ... for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance.”
In Kansas, the general rule is that prejudgment interest is allowable on liquidated claims. Miller v. Botwin, 258 Kan. 108, 119, 899 P.2d 1004 (1995). “A claim becomes liquidated when both the amount due and the date on which such amount is due are fixed and certain or when the same become definitely ascertainable by mathematical calculation.” Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 883, 953 P.2d 1027 (1998). See Miller, 258 Kan. at 119; Kilner v. State Farm Mut. Auto. Ins. Co., 252 Kan. 675, 686-87, 847 P.2d 1292 (1993). However, the fact that a good-faith controversy exists as to whether the party is liable for the money does not preclude a grant of prejudgment interest. Miller, 258 Kan. at 119 (citing Crawford v. Prudential Ins. Co. of America, 245 Kan. 724, 737, 783 P.2d 900 [1989]).
Allowance of prejudgment interest is a matter of judicial discretion subject to reversal only upon a showing of abuse of discretion. BIGS v. City of Wichita, 271 Kan. 455, 480, 23 P.3d 855 (2001); Miller, 258 Kan. at 119. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
BCI asserts the claim was liquidated because the promissory note specifically stated the due date, the amount due, and the method of payment. The McBeths contend the claim was not liquidated, even if the promissory note was held to be enforceable, because, even at trial, BCI was unsure about die amount of its claim.
Prior to closing, BCI had only prepared change orders reflecting $16,708.01 ($6,615 + $10,093.01) in changes. The promissory note executed after closing was in the amount of $45,171.47. BCI’s petition claimed that the McBeths were liable for the principal amount of $44,483. At trial, Blair claimed BCI was entitled to $44,934.83 after agreeing that the promissory note was in error in the amount of $107.53. BCI’s bookkeeper claimed BCI was entided to $44,375.47, also recognizing the $107.53 error in the amount of the promissory note. However, an adjustment of $107.53 to the promissory note does not result in either of the amounts Blair or BCI’s bookkeeper had testified was owed. Ultimately, the trial court awarded BCI $33,005.02. Thus, from the record it appears the amount BCI was claiming the McBeths owed BCI was not a specific and definite amount, although the difference between the amounts given was not substantial.
This court has reviewed a trial court’s decision to grant or deny prejudgment interest on numerous occasions. In Miller, 258 Kan. 108, an attorney brought suit to recover attorney fees based upon a written contingency agreement. The trial court had approved the attorney’s 50 percent contingency fee. for certain services, but disproved of the attorney’s 70 percent contingency fee for other services. The trial court adjusted the 70 percent contingency fee and awarded a 50 percent contingency fee for these services as a matter of equity. The trial court then awarded prejudgment interest on both amounts. The Miller court affirmed the trial court’s award of prejudgment interest, finding that the contingency fees owed were ascertainable based on the terms of the agreements, even though the award by the trial court was for an amount less than that pro vided by the agreements. 258 Kan. at 121. See also Hamilton, 263 Kan. at 883 (insurance claim was liquidated and prejudgment interest appropriate even though damages left to jury, because no dispute as to amount of damages and no other damages supported by evidence); Kilner, 252 Kan. at 687 (prejudgment interest not available where party had stipulated to amount due for purposes of allowing court to determine legal issue); Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 268, 624 P.2d 420 (1981) (judgment based on quantum meruit did not support prejudgment interest because claim not liquidated until trial court determined reasonable worth of services).
Thus, under the reasoning in Miller, because the promissory note was in writing and evidenced a specific amount of indebtedness, the claim was liquidated and the trial court did not abuse its discretion in awarding prejudgment interest.
REDUCING THE AMOUNT OF LIABILITY
BCI filed a cross-appeal, alleging that the trial court erred in reducing the amount of the McBeths’ indebtedness, which was clearly set forth in the promissory note and guaranteed by the mortgage. BCI contends that where the language of the promissory note and mortgage are clear and can be carried out, there is no room for construction or modification of their terms.
Promissory notes and mortgages are contracts to which the rules of contract construction apply. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 661, 876 P.2d 1362 (1994). This court’s review of the interpretation of a written contract is de novo. N.E.A-Topeka v. U.S.D. No. 501, 269 Kan. 534, 540, 7 P.3d 1174 (2000). Absent a contract being ambiguous, a court must give effect to the intent of the parties as expressed within the four comers of the instrument. Metropolitan Life, 255 Kan. at 661. In this case, the promissory note and mortgage are not ambiguous as to price, even though the amount of the mortgage differs slighty from that of the note.
In Nelson v. Robinson, 184 Kan. 340, 336 P.2d 415 (1959), the plaintiff sought cancellation of a real estate sales contract. The trial court, however, refused to grant cancellation of the contract and, instead, granted equitable relief by way of foreclosure with rights of redemption. On appeal, the vendor argued that the trial court did not have the power in law or equity to render such a judgment because it resulted in making a new contract between the parties. The Nelson court stated, as follows:
“In taking this position defendants either overlook or ignore numerous decisions of this court holding (1) that it is a well-settled principle of equity jurisprudence that where a court of equity has obtained jurisdiction of a controversy on any ground it will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject matter [citations omitted]; (2) that a trial court, sitting as a court of equity, is not obliged to render the specific decree prayed for, but may render a decree in accord with its own good judgment or discretion as to what justice demands, in view of the facts pleaded and evidence adduced [citations omitted]; and (3) that in a suit in equity where a court has before it all the property involved, all the parties claiming rights thereto and their respective claims, it should complete the determination of their respective rights and make an appropriate decree so as to avoid future litigation, as far as possible [citations omitted].” 184 Kan. at 344-45.
See also Kline v. Orebaugh, 214 Kan. 207, 211, 519 P.2d 691 (1974) (in equitable proceeding brought against trustee for violation of fiduciary duties, court of equity not obligated to render specific relief requested but may make such decree as justice demands under facts and circumstances).
This case involves foreclosure of a mortgage, which is an equitable action. First Nat’l Bank of Olathe v. Clark, 226 Kan. 619, 623, 602 P.2d 1299 (1979). Thus, under Nelson, the trial court in exercising its equitable powers has jurisdiction to administer complete relief and may render judgment in accordance with what justice demands. 184 Kan. at 344-45.
The trial court adjusted the amount the McBeths owed BCI. By representation of both parties, this adjustment was made by reducing BCI’s builder’s fee by half. The basis for the trial court’s decision to adjust the amount of liability is not supported by the evidence or by the court’s decision. However, because BCI did not object to the inadequacy of the trial court’s findings of fact and conclusions of law, this court will presume the trial court found all the facts necessary to support the judgment. See Tucker, 253 Kan. at 378. Thus, the trial court did not err in adjusting the amount of the McBeth’s indebtedness to BCI in exercising its equitable powers.
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The opinion of the court was delivered by
McFarland, C.J.:
Jeremy J. Bell appeals his jury trial conviction of intentional second-degree murder (K.S.A. 1998 Supp. 21-3402). He was sentenced to life imprisonment with no possibility of parole for a period of 10 years, said sentence to run consecutive to an earlier sentence in an unrelated case. This is the second time this case has been before us. In the first appeal, the issue was a ruling made at the prehminary hearing. State v. Bell, 268 Kan. 764, 1 P.3d 325 (2000).
The facts may be summarized as follows. During the early morning hours of September 4,1998, Carl Gustafson was walking home from a neighborhood bar to his Hutchinson home. His path took him past 528 Fontron Street where a party was in progress, with a number of partygoers in the front yard. The host was Eric Lamunyon. As Gustafson walked by the residence, defendant left the party and accosted Gustafson, despite comments from other guests to leave Gustafson alone. Defendant knocked Gustafson down. Gus tafson stated he did not want any problems, regained his feet, and left. Defendant and another partygoer, Shane McAllister, walked down the street a short distance. Later a man armed with a shotgun confronted the partygoers in the Lamunyon yard and asked why Gustafson had been assaulted. The witnesses agreed the armed man was not Gustafson.
Later Gustafson came back to the scene, stating he only wanted to look for his glasses which had fallen off during the earlier scuffle and did not want any trouble. Defendant, who was a short distance down the street, had heard about the shotgun incident, saw Gustafson, and ran back toward the Lamunyon yard. While Gustafson was talking, the defendant picked up an object described as a baseball bat or 2-by-4, crept up behind Gustafson and dealt a massive blow to Gustafson’s head. The sound of the blow was variously described by the observers as a popping or cracking noise, or the sound of a baseball bat hitting a ball. Defendant assisted in taking Gustafson to the hospital where he died 10 days later from his head trauma. Defendant appeals his conviction of intentional second-degree murder. Other facts will be stated as necessary for the discussion of particular issues.
INSTRUCTIONS
For his first claim of error, defendant contends the trial court erred in refusing to instruct the jury on voluntary manslaughter/ heat of passion and on involuntary manslaughter/excessive force. It should be noted the jury was instructed on second-degree intentional murder (the charged crime), second-degree unintentional/reckless murder, voluntary manslaughter/imperfect defense, involuntary manslaughter/reckless, and aggravated battery. A self-defense instruction was also given.
To understand and determine this claim of error, some additional facts need to be stated. Defendant testified he thought Gustafson had a gun and was threatening defendant’s friends. No gun was seen, but Gustafson held one hand behind his back. This hand would have been visible to defendant as he crept up on Gustafson. While he was closing in on Gustafson’s back, various partygoers urged defendant not to harm Gustafson and shouted warnings to Gustafson of defendant’s approach.
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury verdict in accord with the defendant’s theory and the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Calderon, 270 Kan. 241, 256, 13 P.3d 871 (2000).
Voluntary manslaughter is defined in part as the intentional killing of a human being committed upon sudden quarrel or in the heat of passion. K.S.A. 21-3403(a).
“In order that a court be required to instruct on voluntary manslaughter committed in the heat of passion, the evidence must show 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. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
The provocation must be such that it would cause an ordinary person to act without reflection. State v. Follin, 263 Kan. 28, 35, 947 P.2d 8 (1997). The provocation must be sufficient to move an ordinary person to kill. Evans, 270 Kan. at 589.
Defendant argues that his initial encounter with Gustafson, the appearance of the man with the shotgun at Lamunyon’s house, and Gustafson’s return created a tense and excited atmosphere and created the fear in defendant’s mind that Gustafson had a gun and planned to hurt his friends. Nothing defendant describes rises to the level of provocation necessary to require a heat of passion instruction.
The trial court did not err in refusing to instruct on voluntary manslaughter/heat of passion.
Defendant next argues that the trial court erred in refusing to instruct on involuntary manslaughter/excessive force. Involuntary manslaughter is defined in part as the unintentional killing of a human being committed during the commission of a lawful act in an unlawful manner. K.S.A. 2001 Supp. 21-3404(c). One example of a lawful act done in an unlawful manner is the use of excessive force against an aggressor when a person reasonably believes that such conduct is necessary to defend himself or herself or another against such aggressor s imminent use of unlawful force. State v. Bell, 266 Kan. 896, 916, 975 P.2d 239, cert. denied 528 U.S. 905 (1999).
Defendant’s testimony relating to the defense of himself or his friends was that he thought Gustafson had a gun, based on what he had heard from others and because Gustafson had one hand behind him and was telling the partygoers to stay back. Walker (a party guest) and Lamunyon testified that though they did not see a gun, because Gustafson’s hand was behind his back they thought he might have one and put their hands in the air as a precaution. Defendant testified that he was simply trying to knock Gustafson’s weapon from his hand in order to protect his friends and himself. Defendant stated that he did not aim for Gustafson’s head and did not intend to kill him.
Even assuming, based on defendant’s testimony, that the killing was unintentional and crediting his theory that he had a reasonable belief that the use of force was necessary to protect friends who were yelling “no” and “don’t do it,” defendant was still not entitled to an involuntary manslaughter/excessive force instruction. The problem with giving this instruction is that if the jury believed defendant’s testimony that he thought Gustafson had a gun and intended to hurt one or more of the party crowd, then defendant’s use of force in hitting Gustafson would not have been excessive. See Bell, 266 Kan. at 917.
We find no error in the trial court’s refusal to instruct on involuntary manslaughter/excessive force.
ADMISSION OF PHOTOGRAPHS
Defendant contends the two autopsy photos admitted into evidence were prejudicial and cumulative and, accordingly, their admission was erroneous. We disagree.
The admission of photographs in a homicide case is a matter within the trial court’s discretion, and the trial court’s ruling will not be disturbed on appeal absent the showing of an abuse of that discretion. State v. Verge, 272 Kan. 501, 515, 34 P.3d 449 (2001). An abuse of discretion has occurred when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the 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. 483, 493, 23 P.3d 840 (2001).
Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. State v. Groschang, 272 Kan. 652, 667, 36 P.3d 231 (2001). Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. Deal, 271 Kan. at 493. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible. Groschang, 36 P.3d at 243.
The complained-of photographs are two 3-by-5-inch color photos. The first shows a portion of the victim’s skull prior to any invasive autopsy procedures. It depicts a closed, surgical incision from a procedure performed during defendant’s hospital stay to remove blood which had been accumulating under the skull from the victim’s injuries. The other photograph shows the scalp pulled down to demonstrate the visible cracks in the victim’s skull from the trauma thereto. The photographs were used by forensic pathologist, Dr. Come L. May, to illustrate injury to the skull and the later surgical procedures.
The photographs were neither prejudicial nor cumulative. No abuse of discretion has been shown in their admission.
LATE ENDORSEMENT OF A STATE WITNESS
Defendant argues that the trial court erred in allowing the late endorsement of Vanessa Smith as a witness for the State. K.S.A. 2001 Supp. 22-3201(g) provides:
“Except as otherwise provided, the prosecuting attorney shall endorse the names of all witnesses known to the prosecuting attorney upon the complaint, information and indictment at the time of filing it. Except as otherwise provided, the prosecuting attorney may endorse on it the names of other witnesses that may afterward become known to the prosecuting attorney, at times that the court may by rule or otherwise prescribe.”
The right of the State to endorse additional witnesses lies in the sound discretion of the trial court, and its ruling will not be disturbed on appeal in-the absence of a showing of abuse of discretion. The test is whether the defendant’s rights have been prejudiced. State v. White & Stewart, 225 Kan. 87, 91, 587 P.2d 1259 (1978).
An appellate court will generally uphold a late endorsement unless the defendant was surprised and the testimony was critical, in other words, of “ ‘a climactic and highly damaging nature.’ ” State v. Allen, 21 Kan. App. 2d 811, 816, 908 P.2d 1324 (1995), rev. denied 259 Kan. 928 (1996). Further, to sustain a claim of reversible error, a defendant must have objected to the late endorsement and must have been denied a request for a continuance of the trial. State v. Beebe, 244 Kan. 48, 52, 766 P.2d 158 (1988).
The State requested that Smith be endorsed as a witness on the second day of trial. The State pointed out that Smith’s statement was provided to defendant during pretrial discovery and again on the first day of trial and her testimony could come as no surprise. The State further contended that its failure to endorse Smith was purely an oversight. Defendant objected, arguing that the State had ample opportunity to endorse Smith and it had failed to do so.
Smith’s testimony consists of 12 pages of the 418-page trial transcript. Smith provided testimony regarding her encounter with Bell a short time after the incident. Smith testified as to her conversation with Bell about what had transpired with Gustafson and the fact that she saw Bell burning his bloody shirt.
Defendant did not request a continuance when faced with the endorsement of Smith as a witness. There is no indication defendant was surprised by the content of Smith’s testimony and there is no indication in the record that he changed his trial strategy based upon her endorsement as a witness.
We conclude the trial court did not abuse its discretion in the late endorsement of Smith.
SUFFICIENCY OF THE EVIDENCE
Defendant was convicted of intentional second-degree murder. He argues the evidence was insufficient to support the conviction.
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. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Defendant relies on evidence that the victim suffered injuries to both sides and the top of his head. There was evidence defendant in the initial encounter punched the victim, causing him to fall to the ground. In the later occurrence, defendant struck the victim with what he admitted was a baseball bat. There was testimony that after the victim went down from the bat blow, Shane McAllister lacked the victim on the top of his head, with the inside of the shoe making the contact with what was described as a medium force. Defendant argues that the State did not prove that his baseball bat blow inflicted the fatal trauma. There was much evidence that the baseball bat was swung with great force, resulting in a loud noise on contact, and that the resulting wound bled profusely. The forensic testimony was that the massive skull fracture was consistent with the baseball bat blow.
Viewing the evidence in the light most favorable to the prosecution, there was ample evidence that the victim’s death resulted from being struck in the head with a baseball bat intentionally wielded by the defendant with great force.
We are convinced that a rational factfinder could have found defendant guilty of intentional second-degree murder beyond a reasonable doubt.
The judgment is affirmed.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinaiy Administrator s office against Christopher E. Lucas, of Overland Park, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against respondent alleges that the respondent violated this court’s order of suspension and violated KRPC 5.5 (2001 Kan. Ct. R. Annot. 424) (unauthorized practice of law).
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on November 8, 2001,-in the hearing room of the office of the Disciplinary Administrator, Topeka, Kansas. Respondent appeared in person pro se. The panel found, by clear and convincing evidence, that:
“1. . . . The Respondent was admitted to the practice of law in the state of Kansas on October 1,1993. Following an earlier disciplinary case, the Respondent was suspended from the practice of law in the state of Kansas on July 14, 2000, for a period of two years.
“2. On July 17, 2000, John W. Karr received a traffic citation in the city of Leawood, Kansas. That same day, shortly after receiving the ticket, Mr. Karr provided the ticket to the Respondent’s legal assistant. On previous occasions, Mr. Karr retained the Respondent to negotiate the reduction of traffic tickets to ‘non-moving’ violations. On this occasion, Mr. Karr asked the Respondent’s legal assistant to have the Respondent again provide this service.
“5. Following [the Respondent’s] suspension, the Respondent ‘transferred’ his files to Anthony Totta. The Respondent ‘believed’ that he transferred Mr. Karr’s case to Mr. Totta. However, he never provided Mr. Totta with Mr. Karr’s ticket.
“6. The Respondent failed to notify Mr. Karr, the Leawood Municipal Prosecutor, and the Leawood Municipal Court of his suspension.
“7. On September 18, 2000, the Respondent noticed that Mr. Karr’s ticket was set on the attorney plea docket. The Respondent called Mr. Totta’s office to make sure that Mr. Totta would be making the appearance for Mr. Karr. However, Mr. Totta was out of town.
“8. The Respondent proceeded to the Leawood Municipal Court. The Respondent approached the clerk, identified himself as an attorney, and indicated that he wanted to make a payment on his client, Mr. Karr’s traffic citation. Elena Casas, Clerk of the Municipal Court, verified with the Respondent that he was the attorney of record. Additionally, Ms. Casas twice asked the Respondent whether he wanted to meet with the municipal prosecutor. The Respondent declined. The Respondent paid a fee of $65.00 for Mr. Karr’s traffic citation.
“10. On October 12, 2000, the Respondent spoke to Disciplinary Investigator David Wood. The Respondent admitted that he told the Clerk of the Municipal Court that he was an attorney. Additionally, the Respondent admitted that he put ‘attorney’ after his name on the check used to pay the fine because at the time he was still a licensed Missouri attorney. Finally, the Respondent told Investigator Wood that he believed that he could give legal counsel in Kansas, even after being suspended, because he did not get compensated for the legal work.
“11. On October 19, 2000, the Johnson County District Attorney charged the Respondent with false impersonation, in violation of K.S.A. 21-3824, by unlawfully and willfully representing himself to be a person licensed to practice or engage in a profession for which a license is required by the laws of the state of Kansas.
“12. Thereafter, on April 18, 2001, the Respondent entered into a ‘Diversion Agreement’ with the Johnson County District Attorney. In the agreement, the Respondent agreed to pay the costs of the action, pay a diversion fee, and perform 120 hours of community service work. The diversionary period is twelve months.”
The panel made the following conclusions of law:
“3. When a lawyer ‘engage[s] in conduct involving dishonesty, fraud, deceit or misrepresentation,’ a lawyer has engaged in professional misconduct as proscribed by KRPC 8.4(c).
“4. Kan. Sup. Ct. R. 202 provides that:
‘A certificate of conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for the purposes of any disciplinary proceeding, shall be deemed a conviction of the crimes originally charged.’
Id. (emphasis added). Based upon the Diversion Agreement, and pursuant to Kan. Sup. Ct. R. 202, the Respondent is deemed ‘convicted’ of falsely impersonating a lawyer. Because committing that crime necessarily requires that the Respondent 'engage[dj in conduct involving dishonesty, fraud, deceit or misrepresentation,’ the Hearing Panel concludes that the Respondent violated of KRPC 8.4(c).
“5. The Respondent also violated KRPC 8.4(c) when he failed to inform Mr. Karr, tire Municipal Prosecutor, and the Municipal Court that he was suspended from the practice of law.
“6. KRPC 5.5 provides that ‘[a] lawyer shall not . . . practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.’ Id.
“7. K.S.A. 8-2118(b) provides as follows:
‘Prior to the time specified in the notice to appear, a person charged with a traffic infraction may enter a written appearance, waive right to trial, plead guilty or no contest and pay the fine for the violation as specified in the uniform fine schedule in subsection (c) and court costs provided by law. Payment maybe made by mail or in person and may be by personal check. The traffic citation shall not have been complied with if a check is not honored for any reason, or if the fine and court costs are not paid in full. When a person charged with a traffic infraction makes payment without executing a written waiver of right to trial and plea of guilty or no contest, the payment shall be deemed such an appearance, waiver of right to trial and plea of no contest.’
Id. Based upon K.S.A. 8-2118, by paying the ticket for Mr. Karr, the Respondent entered a plea of no contest to the charge for Mr. Karr.
“8. In this case, the Respondent was suspended from the practice of law on July 14, 2000. During the following week, on July 17, 2000, the Respondent, through his legal assistant, accepted the legal representation of a traffic case from Mr. Karr and entered his appearance as attorney of record for Mr. Karr. Furthermore, on September 18, 2000, at the time the Respondent went to the Lea-wood Municipal Court, the Respondent identified himself as an attorney, wrote ‘attorney’ next to his name [on] the check, and entered a plea in his client’s behalf. Accordingly, the Hearing Panel concludes that the Respondent practiced law when his license to do so was suspended, in violation of KRPC 5.5.”
The panel applied the ABA Standards for imposing lawyer sanctions and considered ABA Standard 3 in maldng its recommendation as to the discipline to be imposed against the respondent.
The panel found one aggravating factor: “Prior Disciplinary Offenses. The Respondent is currently suspended from the practice of law for having violated KRPC 8.4(c). See In re Lucas, 269 Kan. 785, 7 P.3d 1186 (2000).” The panel found several mitigating circumstances, including:
“Absence of Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“Imposition of Other Penalties or Sanctions. In this case, the Respondent entered into a diversion agreement for false impersonation. The diversion agreement requires that the Respondent pay the costs associated with the criminal action and diversion and perform 120 hours of community service work.
“Remorse. Clearly, at the hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.”
In addition to the above-cited factors, the panel has thoroughly examined and considered Standard 8.3(a). That Standard provides, in pertinent part:
“Reprimand is generally appropriate when a lawyer negligently violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession.”
The panel further noted:
“However, Kan. Sup. Ct. R. 218(c) provides that ‘[violation of any suspension order shall constitute grounds for disbarment.’ Id. In reaching its recommendation for discipline in this case, the Hearing Panel considered the purpose of Kan. Sup. Ct. R. 218(c). It seems that disbarment is the appropriate sanction for attorneys who purposefully continue to practice law after having been suspended or disbarred by the Kansas Supreme Court. That is not the case here. In this case, the Respondent did practice law after he was suspended. In his own mind, however, he attempted to avoid practicing law.”
The panel then concluded its recommendation as follows:
“Based upon the above findings of fact, conclusions of law Standard 8.3(a), and Kan. Sup. Ct. R. 218, the Hearing Panel unanimously recommends that Respondent be suspended from the practice of law until July 13, 2002, as previously ordered. However, the Respondent’s failure to contemporaneously recognize that he ‘practiced law’ by entering a plea in his client’s behalf, is somewhat troubling to the Hearing Panel. Accordingly, the Hearing Panel further recommends that the Respondent be required to undergo a reinstatement hearing. See Kan. Sup. Ct. R. 219. At the reinstatement hearing, the Respondent should be required to establish that he ... is able to handle the responsibilities of practicing law.”
The court, having considered the record herein and the reports of the hearing panel, concurs in the findings, conclusions, and recommendation of the panel.
It Is Therefore Ordered that Christopher E. Lucas be suspended from the practice of law in the State of Kansas until July 13, 2002, the date his current 2-year suspension ends, in accordance with Supreme Court Rule 203(a)(2) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that respondent shall be subject to all of the reinstatement requirements, including a hearing as provided by Supreme Court Rule 219 (2001 Kan. Ct. R. Annot. 285).
It Is Further Ordered that respondent fully comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot 276), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is a wrongful death and personal injury action filed by Arnold and Rhonda Reynolds against James and Karen Van Kirk, Everett Jones, and the Kansas Department of Transportation (KDOT). The trial court entered judgment on a jury verdict that found KDOT 35% at fault, Jones 45% at fault, and Arnold Reynolds 20% at fault. KDOT appealed from the trial court’s denial of its motions for summary judgment and directed verdict. The Court of Appeals reversed and remanded. Reynolds v. Kansas Dept. of Transportation, 29 Kan. App. 2d 695, 30 P.3d 1041 (2001). The Reynolds’ petition for review was granted.
On appeal, KDOT argues that it did not owe a duty to the Reynolds, and if it did, there was insufficient evidence KDOT’s failure to maintain its fence was the proximate cause of the injuries and damages sustained by the Reynolds.
On August 1, 1997, at approximately 9 p.m., a vehicle driven by Arnold Reynolds struck a cow. The vehicle left the road and struck an embankment. Arnold’s wife Connie was killed, and their daughter, Rhonda, was severely injured.
The Reynolds’ vehicle was southbound on Highway 69 approximately 2Vz miles north of the Louisburg exit. Where the accident occurred, Highway 69 is a four-lane road with a grassy median between north and southbound lanes. It is a controlled access road.
259th Street passes over Highway 69. The rock embankment hit by the Reynolds’ vehicle is on the right shoulder of the southbound lanes “just past 259th.” When the vehicle struck the cow, it veered off the road and into tire embankment. There is no access to Highway 69 at 259th Street.
Between 259th Street and 263rd Street, there is a large culvert that passes beneath Highway 69. A stream flows through the culvert from east to west. The property on the east end of the culvert belongs to Lee Phillips, and he has an orchard there. Everett Jones leased 40 acres on the west side and pastured some cattle there. Before August 1, 1997, Jones had 11 cows. After the vehicle accident, he was missing one cow.
In this vicinity, a KDOT fence parallels Highway 69 on either side and completely seals it off. Where there is an overpass, the KDOT fence “snugs up” to the overpass to seal off Highway 69. The fence is heavy gauge woven wire with 4-to 5-inch openings. The posts are metal and there is a strand of barbed wire along the top. Lee Phillips described the fence as a “cattle type” fence.
KDOT fence runs over the top of the culvert. KDOT does not fence across the openings of the culvert. Jones installed a water gap at the mouth of the culvert when he began leasing the pasture. He also built a water gap on the Phillips end of the culvert. He regularly had to repair the fence on both sides of the culvert and the water gap on the Jones’ side of the culvert. The repairs were necessitated by heavy water flow after rainstorms.
Jones, a seasonal concrete worker, began leasing the property and grazing cattle there in 1988. Jones testified that his cattle had gone through the culvert and onto Phillips’ property three times. Phillips testified that he knew of two times when the cattle had gotten on his property. Rainstorms wash debris and logs against the water gap, necessitating repairs. Jones repaired or rebuilt the water gap at tire culvert three times. William Michael Lackey, retired assistant Secretary of KDOT, acknowledged the difficulty in adequately fencing the culvert due to heavy water flow during and after a rainstorm.
Phillips testified that the KDOT fence on his side of Highway 69 had been down at least a year and a half before August 1997. A fence post had been knocked completely down. He had seen deer go through the gap in the fence quite often. Phillips did not report the broken fence because he saw KDOT employees mowing and believed that they would see that it needed to be repaired. That stretch of Highway 69 had been mowed twice in 1997 before the accident. David Arbogast, KDOT maintenance supervisor for the Louisburg area, testified that he inspects the fences weekly from the road. Lackey expressed the opinion that it would be a waste of resources for KDOT to inspect fences annually. He testified that maintaining fence was “very low” on KDOT’s priority fist.
Lackey said that KDOT fence was not for keeping cattle in, but he recognized that farmers do not install a second fence that runs alongside a KDOT fence. He testified that fence repair becomes a priority when a farmer keeps cattle and uses KDOT fence.
KDOT’s official manual provides that the purposes of fencing are to control access, provide safety to traveling public, prevent indiscriminate crossing of medians or ramps by vehicles or pedestrians, and prevent encroachments on the right of way.
With regard to maintenance and inspection of fencing, KDOT’s manual provides:
“The State Owned Fences are to be maintained as originally constructed and in such a condition that they:
a. Serve their intended purpose.
b. Present a satisfactory appearance.
“Fences Which Have been Damaged to the extent that their effectiveness is severely reduced should be repaired immediately. A temporary repair may be necessary until permanent repairs can be made.
“State Owned Fences Should Be Inspected a minimum of once per year and repairs made where needed.
“When damage to Private Fences is observed, which affects the protection of the highway user, the owner should be promptly notified.”
Arbogast testified that even if he had known that the fence to Phillips’ property was down, he would not have repaired it immediately. His crew would have repaired it “when we got time.” Arbogast testified that he knew that the land adjoining this stretch of fence did not have livestock on it, and, for that reason, he would repair the fence as soon as possible but not immediately.
The evening of August 1, 1997, 10 to 12 cows were located by highway patrol troopers and Miami County sheriff deputies on the east side of Highway 69 along the highway side of the fence line immediately on the north side of 259th. A farmer with a pasture on the west side of Highway 69 offered to allow the cows to be kept in his pasture temporarily. The farmer and officers cut the KDOT fence on the northeast corner of the overpass in order to get the cows onto 259th Street. They planned to herd the cows across the bridge to put them into the farmer’s pasture.
Once they got the cattle onto 259th Street, one cow left the herd. It jumped the guard rail, ran 25 to 30 feet to another fence, cleared the fence and ran approximately 50 to 100 yards to the southeast. The officers thought the lone cow was safely fenced in. They herded the other cows across the bridge and into the farmer’s pasture. Before the officers got back to their vehicles, the Reynolds’ vehicle hit a cow in a southbound lane of Highway 69 just south of 259th St.
After the accident, Phillips saw cattle tracks in the mouth of the culvert on the east side of Highway 69. Around the downed fence, the grass was “pretty deep.” Phillips saw no evidence on or around the downed fence to show whether the cattle crossed it.
The Reynolds sued Jones; the Van Kirks, owners of the pasture Jones rented; and KDOT. Jones settled, and the trial court entered summary judgment in favor of the landowners. KDOT’s motion for summary judgment was denied, and the Reynolds proceeded to trial against KDOT. KDOT’s motion for directed verdict also was denied. The jury returned a verdict that found KDOT 35% at fault, Jones 45% at fault, and Arnold Reynolds 20% at fault. The jury awarded Rhonda Reynolds $705,521.65 and Arnold Reynolds $473,774. Reynolds, 29 Kan. App. 2d at 697.
KDOT appealed. The Court of Appeals reversed and remanded with the instruction to the trial court to enter a verdict on behalf of KDOT. The Court of Appeals held that KDOT did not owe a duty to the Reynolds. 29 Kan. App. 2d at 699-700. The Court of Appeals also expressed the opinion that the proximate cause of the accident was the cow’s escape through the culvert, for which KDOT bore no responsibility. 29 Kan. App. 2d at 700-01. The Reynolds’ petition for review was granted.
We first determine if KDOT owed a duty to the Reynolds. The Reynolds claimed that the cow they hit “was allowed access to 69 Highway by a KDOT fence in disrepair.” They alleged that KDOT was negligent in failing to maintain the fencing sufficiently to prevent livestock from entering upon the highway and/or in failing to keep the highway in a reasonably safe condition. The jury was instructed that KDOT “has a duty to maintain its highways in a reasonably safe condition” and that the violation of this duty was negligence. The juiy also was instructed that KDOT “has no duty to install a fence across the entrance or exit of the box culvert in question.”
As the Court of Appeals stated, whether KDOT owed a duty to the Reynolds is a question of law. 29 Kan. App. 2d at 700, 701. The reasoning of the Court of Appeals seems to have been that the cattle escaped from their pasture through the culvert, KDOT did not have a duty to fence the culvert, and there was no evidence that the cow got onto the highway by going through the damaged fence. Hence, according to the Court of Appeals, KDOT owed no duty to the Reynolds under the circumstances. 29 Kan. App. 2d at 700-01.
We do not agree with the Court of Appeals’ reasoning and conclusion. The statement that KDOT does not have a duty to fence the opening of the culvert is well taken. The remaining portion of the Court of Appeals’ statement, however, is not. The subject of the discussion in this first issue is KDOT’s duty. The subject of the second issue is the separate question of causation. The Court of Appeals simply mixed the two together, and in so doing put the horse in the cart. In Nero v. Kansas State University, 253 Kan. 567, Syl. ¶ 1, 861 P.2d 768 (1993), we held:
“To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.”
KDOT has a common-law duty to protect the motoring public. Trout v. Koss Constr. Co., 240 Kan. 86, 91-93, 727 P.2d 450 (1986). The common-law duty of KDOT to keep the highways in a reasonably safe condition is nondelegable due to its importance to citizens. 240 Kan. at 93-94. KDOT installs fences along controlled access highways, such as Highway 69 where the Reynolds’ accident occurred, for the purpose, among others, of providing safety to the traveling public. Farmers rely on the state fences rather than installing private fences alongside the state ones. Having undertaken the job of fencing along the portion of Highway 69 north of Louis-burg, KDOT had a duty to maintain its fences. See Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 488-89, 657 P.2d 532 (1983).
KDOT argued in its motions to the trial court and again on appeal that it only has a duty to maintain its fences where livestock are present. The Court of Appeals’ decision was greatly influenced by KDOT’s position, thus blending the questions of duty and causation.
KDOT’s argument and the Court of Appeals’ opinion are contrary to the long-established principle that one who undertakes to act so that another reasonably relies becomes subject to the duty to perform his undertaking with reasonable care. 232 Kan. at 488-90. KDOT’s argument and the Court of Appeals’ opinion also assume an impractical level of KDOT knowledge of landholders’ practices and an unrealistic expectation that land uses never change. In addition, KDOT’s own maintenance manual commits KDOT to immediately repair its fences where damage severely reduces their effectiveness in providing safety to the traveling public, which was the situation in this case. The fence between Phillips’ land and Highway 69 was down, and deer had been seen passing through the gap quite often for a year and a half. Deer and cattle, as demonstrated by the one that left the herd in this case, can jump a KDOT fence, but a well-maintained fence between a field and a highway offers some measure of protection for the motoring public. KDOT had a duty to repair its fence promptly, whether or not Phillips kept livestock. KDOT did not do so. In addition, KDOT was aware that heavy water flow could and usually would damage or destroy water gaps installed on the culverts, the result obviously being that cattle could escape onto the Phillips’ land during or after a rainstorm.
In Trout, Trout was injured when his truck struck a number of horses on Interstate 70, which was being resurfaced. On the night of the accident, the construction crew had removed a worn or damaged portion of the permanent fence and failed to put up a temporary fence when they quit work that night. Trout claimed similar acts of negligence on the part of KDOT, as were raised in the present case, including failure to maintain the highway in a reasonably safe condition and failure to maintain and inspect the fence. There, as here, KDOT took issue with the jury being instructed that it had a duty to maintain the highway in a reasonably safe condition. This court stated:
“Appellant does not dispute that it has a duty of reasonable care to the motoring public but contends there is a difference between maintaining a highway in a ‘reasonably safe condition’ and refraining from, by act or omission, acting negligently. We see little, if any, distinction. The maintenance of the highway in a reasonably safe condition is the duty that is owed the public while the acts and omissions of the State’s employees in carrying out that duty may or may not constitute negligence.” 240 Kan. at 91.
The trial court correctly denied KDOT’s motions for summary judgment and directed verdict on the issue of duty.
Having determined that a duty exists, we turn to whether KDOT’s failure to maintain its fence contributed to the injuries and damages sustained by the Reynolds. In Trout, we said:
“At any given time, a particular location on a highway may be either in a ‘reasonably safe condition’ or not in a ‘reasonably safe condition.’ What constitutes a ‘reasonably safe condition’ will necessarily vary according to terrain, time of day, weather conditions, and other factors. If an unsafe condition arises from improper conduct by a state employee, then the State may incur liability. Similarly, if the condition arises from the failure of the State to perform a required act, liability may also result. However, if the dangerous condition arises through remote or unforeseen circumstances, of which the State had no notice, ordinarily liability will not attach.” 240 Kan. at 91.
In its motions in the trial court, KDOT argued that there was not sufficient evidence of causation. There were several layers and emphases to the causation argument.
First, KDOT argued that its damaged fence was not the proximate cause of the plaintiffs’ accident because the cattle initially escaped from their pasture through the culvert. The Court of Appeals adopted the argument and concluded that any negligence by KDOT was not the proximate cause of the accident because the proximate cause “was the escape of the cow through the culvert.” 29 Kan. App. 2d at 701. It sounds as if the Court of Appeals believed that there could be only one cause of the accident, but, since adoption of comparative negligence in 1974, Kansas courts compare the percentages of fault of all alleged wrongdoers. K.S.A. 60-258a. Proximate cause is not an obsolete concept in Kansas law, but when it has been mentioned by this court in recent years it typically has been in a criminal context. See State v. Sophophone, 270 Kan. 703, 708-12, 19 P.3d 70 (2001) (felony-murder), State v. Anderson, 270 Kan. 68, 71-72, 12 P.3d 883 (2000) (involuntary manslaughter); in discussions of decisions from other states, Glaser v. U.S.D. No. 253, 271 Kan. 178, 181-86, 21 P.3d 573 (2001), and State v. Davidson, 267 Kan. 667, 683, 987 P.2d 335 (1999); and in stating a party’s argument, Carlson v. Ferguson, 270 Kan. 576, 580, 17 P.3d 333 (2001), Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 449, 14 P.3d 1170 (2000). The only recent case in which this court has discussed proximate cause as an enduring principle in a negligence action is Cullip v. Domann, 266 Kan. 550, 972 P.2d 776 (1999), which involved the very narrow subject of negligence per se. The court stated: “Liability in damages cannot be predicated on a violation of a statute unless the breach of the law is the proximate cause of the injury or damages, or substantially contributes thereto. A connection must be established between the violation proved and the damage or injury occasioned. (Emphasis added.)” 266 Kan. 550, Syl. ¶ 4. “In Torts, 3rd ed, p 282, Professor Prosser wrote, ‘[pjroximate cause is a heritage of Lord Bacon who, in his time, committed other sins.’ It would seem that Kansas needs no longer to be a land in which his sins proliferate.” PIK 3d Civil 104.01, Comment. With the adoption of comparative fault, Kansas has moved beyond the concept of proximate cause in negligence.
In a comparative fault system, “distinctions between primary, secondary, active and passive negligence lose their previous identities. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the ‘all or nothing’ concepts are swept aside.” Kennedy v. City of Sawyer, 228 Kan. 439, Syl. ¶ 6, 618 P.2d 788 (1980). A jury is instructed to “weigh the respective contributions of the parties” in making the apportionment of percentage of fault. PIK 3d Civil 105.05. In the present case, the jury was correctly instructed that “[a] party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the injury or damages for which claim is made.”
In Nero, we held that ‘ “[w]hether risk of harm is reasonably foreseeable is a question to be determined by the trier of facts. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law. [Citation omitted.]” ’ 253 Kan. at 583.
Intervening and superseding causes, which cut off liability for earlier negligence, are still recognized in extraordinary cases. See PIK 3d Civil 104.03, Aldoroty v. HCA Health Services of Kansas, Inc., 265 Kan. 666, 678-79, 962 P.2d501 (1998) (discussing Tinkler v. U.S. by F.A.A., 982 F. 2d 1456 (10th Cir. 1992). There was no request for instructions on intervening or superseding causes in this case.
The second layer of KDOTs causation argument includes two questions. The first is whether there was enough evidence that the cattle left private land through the gap in the KDOT fence. There was circumstantial evidence that the cattle left their pasture on the west side of the highway and went through the culvert to the east side. That circumstantial evidence was that Jones’ cattle several times before had gotten onto Phillips’ land and that after the Reynolds’ accident Phillips, who did not keep cattle, saw cattle tracks at his end of the culvert. There also was circumstantial evidence that the cattle left Phillips’ land and got onto the State-owned land flanking the highway by going over the damaged KDOT fence. That the fence was down was a known fact. The cattle that were found on the State-owned land flanking Highway 69 did not belong there. There was evidence that the KDOT fence parallels the highway on both sides and that in the vicinity of the accident its fences pass over the culverts and “snug up” to the overpasses in order to seal off the highway. From this evidence, it reasonably may be inferred that the cattle crossed a KDOT fence to get onto State land, and, moreover, it reasonably may be inferred that the cattle crossed the fence where it was down. Testimony that there was no cattle hair on the fence and no cattle tracks where it would be difficult to discern them in the deep grass around the downed fence may weigh against the inference, to some degree, but did not obviate it.
A trial court is required on motions for summaiy judgment and directed verdict to resolve all facts and inferences to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motions must be denied. The same rule is applied on review. Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 (2000); Reeves v. Carlson, 266 Kan. 310, 313, 969 P.2d 252 (1998). Thus, the trial court properly found, based upon the facts and inferences with regard to the cattle, that the cattle left their pasture through the culvert and left Phillips’ land for the State-owned land along Highway 69 by crossing the KDOT fence where it was down.
The other question, one which KDOT articulated particularly in its motion for summary judgment, concerns the single cow, not the group of cattle. The evidence shows that the cattle were found on State-owned land on the north side of 259th. The officers and a farmer had cut the KDOT fence in order to herd the cattle from the highway right-of-way onto 259th. Before the cattle could be herded over the 259th Street bridge to a pasture on the east side of the highway, one cow bolted from the group. That cow jumped over a guard rail, jumped a fence, and ran approximately 50 to 100 yards toward the southeast. The officers believed that the single cow was fenced in away from the highway. It reasonably may be inferred from all the evidence that the cow that bolted as it was being herded was the cow that was on the highway and hit by the Reynolds’ vehicle. In order to get back to the highway, the cow would have had to recross the KDOT fence, according to the testimony of the officers.
KDOT argued that it was as probable that the single cow reentered the highway right-of-way by jumping a well-maintained KDOT fence as by crossing where the fence was down. KDOT argued that because the cow may have jumped back over the fence to get onto the highway, the evidence does not provide a reasonable basis for concluding that it is more likely than not that its failing to maintain the fence was a cause of the accident.
There is no merit to KDOT’s argument. Uncontradicted evidence supports the finding that the cattle got onto the highway right-of-way by crossing the downed fence. Uncontradicted evidence supports the finding that the single cow broke away from the herd while officers were herding them and made its way onto the highway, where it was hit by the Reynolds’ vehicle. The persons against whom allegations of negligence were made and to whom the jurors could assign fault were Jones, Arnold Reynolds, and KDOT: Jones for not maintaining the fence across the culvert, Reynolds for not maintaining a proper lookout, and KDOT for not maintaining its fence. There was no allegation that Reynolds’ fault should have cut off any other fault, and there was no other negligence alleged to have contributed to the event after the cattle crossed the KDOT fence onto the highway right-of-way. Thus, as this case was structured by the pleadings, whether the single cow recrossed at the downed fence or jumped a well-maintained fence is immaterial. The cattle escaped from private land onto the highway right-of-way due to KDOT’s negligence, and before the cattle could be safely confined again, one cow found its way onto the highway and was struck by the Reynolds’ vehicle.
In summary, KDOT had a duty to maintain its highways in a reasonably safe condition. The risk of harm did not arise from a remote or unforeseen circumstance of which KDOT had no notice. Reasonable persons could disagree on whether the risk of harm was foreseeable. Thus, whether the risk was foreseeable and the duty breached was a question for the jury. The jury could properly find that KDOT was negligent, and that negligence contributed to the injuries and damages to the Reynolds family.
We reverse the judgment of the Court of Appeals and affirm the judgment of the district court based on the jury verdict. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Brad A. Holmes, Aaron L. Ashel, Harley W. Bruner, and Carrie M. Hadsell worked for Unified School District No. 259 (USD 259) as security personnel during a period when their holiday pay was not computed in accordance with the district policy. After USD 259 determined that the plaintiffs had been underpaid, it paid additional holiday compensation to each of the plaintiffs. Alleging that they had not been fully compensated for their overtime work, plaintiffs sued USD 259 for additional sums. The district court denied USD 259’s motion for summary judgment. After a bench trial, the district court ruled in plaintiffs’ favor. USD 259 appeals from the order denying its motion for summaiy judgment and the entry of judgment against it. The court transferred the case from the Court of Appeals. See K.S.A. 20-3018(c).
Two issues are raised by USD 259 on appeal: Did the district court erroneously deny USD 259’s motion for summary judgment, and did the district court erroneously conclude that USD 259 owed additional holiday pay to the plaintiffs?
The parties agreed in the trial court and continue to agree on appeal that there are no issues of material fact. The following statement of facts is taken from USD 259’s statement of uncontroverted facts, which plaintiffs did not controvert, in support of its motion for summary judgment:
In July 1999, a security officer employed by USD 259 brought his concerns about the calculation of holiday pay to the attention of the district’s director of personnel services. USD 259 investigated and learned that the holiday pay of security personnel was not being correctly calculated. It continued to be calculated in accordance with a practice that had been superseded by adoption of the Board of Education Policy 4504 (P4504).
The superseded practice was to pay security personnel the regular rate of pay for the 8 hours worked on national and Board of Education (Board) adopted holidays. Security personnel were then given a different 8-hour day off with pay.
P4504 provides:
“Employees [working on holidays] shall receive hourly rates as follows:
a. Two times the regular hourly rate plus the Board paid holiday rate ... for work required on national holidays designated by the Board adopted calendar. . . .
b. One and one-half times [the] regular hourly rate plus the Board paid holiday rate ... for work required on holidays designated by the Board adopted calendar.”
Applying P4504, USD 259 concluded that the security personnel mistakenly had been underpaid 8 hours of wages for national holidays worked and 4 hours of wages for Board-adopted holidays worked.
Plaintiff Holmes was paid $2,418 in additional holiday pay for the period from July 1994 through September 1999. Plaintiff Ashel was paid $3,097.56 in additional holiday pay for the period from July 1994 through September 1999. Plaintiff Hadsell was paid $844.96 in additional holiday pay for the period from January 1997 through May 1999. Plaintiff Bruner was paid $163.84 in additional holiday pay for the period from February 1999 through September 1999.
After a bench trial, the district judge found for the plaintiffs and entered judgment against USD 259 for the following amounts of additional holiday pay:
Holmes $2,320.08
Ashel $2,191.90
Bruner $327.68
Hadsell $1,882.08
In accordance with Rule 141, USD 259 filed with the court and served on plaintiffs’ counsel a memorandum supporting its motion for summary judgment that set forth uncontroverted contentions of fact in separately numbered paragraphs. Plaintiffs controverted none of the movant’s factual contentions.
At the hearing on USD 259’s motion for summary judgment, the parties agreed on the record that there were no issues of material fact and that resolution of the matter required only interpretation of P4504. With the case thus ripe for summary judgment, District Judge Eric Yost declined to resolve the legal issue.
At the hearing, he stated: “But it’s not a factual dispute. No one disputes what they were paid, no one disputes what the policy was, no one disputes what hours were worked, it’s simply an interpretation of the policy and what can or cannot be done under the policy; isn’t that right?” Plaintiffs’ counsel replied, “True.” The district judge concluded:
“Well, it might very well be that if we were here on bench trial on this I would say yes, [USD 259’s] absolutely right, because at first blush it appears to me that they’ve been compensated. But that doesn’t mean that that’s not the same as me granting the motion for summary judgment, because in effect [plaintiffs’ counsel] should have an opportunity to make his arguments. Maybe we should dispose of it here this morning or this afternoon but that’s a different issue than granting the motion for summary judgment as a matter of law.
“I’m going to go ahead and make the finding that the material facts are not controverted but that it’s an interpretation of law as to what the policy means. Based on the facts we have in front of us, which the parties have agreed to, I’m going to overrule the motion for summary judgment and allow you to go ahead and take this to a bench trial with whatever judge Judge Lahey sends you to, whenever that is and you can make those arguments at that time.”
On appeal, USD 259 complains that in these circumstances the district court should have granted its motion for summary judgment. In these circumstances, the district court should have ruled on the motion for summary judgment, not necessarily granting the motion, but avoiding the necessity of additional delay, court time, costs, and attorney fees for both parties. A trial court has the inherent authority to summarily dispose of a matter on its own motion where there remains no genuine issue as to any material fact, and judgment must be for one of the parties as a matter of law. Phillips v. Carson, 240 Kan. 462, Syl. ¶ 3, 731 P.2d 820 (1987). However, the error was not in denying summary judgment to the defendant, but in failing to grant the plaintiffs’ motion for summary judgment.
After Judge Yost denied USD 259’s motion for summary judgment on October 12, 2000, the parties appeared before District Judge Richard Ballinger on December 4, 2000, for the bench trial. No witnesses were called. At the end of the proceeding, the trial court rendered its decision in favor of the plaintiffs on the record:
“In this case, although the city did kick in that extra eight hours, at the time and under the circumstances the employee did not agree to it, did not agree to allow the city to waive, is in a position where they really couldn’t do anything about it and, therefore, it was a iion-consensual arrangement and the Court finds for those reasons legally that the extra funds, extra day pay on each one of these five individuals are due and therefore enters judgment on behalf of the plaintiff for $2320.08 on Brad Holmes, $2191.90 on Aaron Ashel, $327.68 on Harley Bruner and Carrie Hadsell is $1882.08. For the record, that is consistent with Plaintiffs’ Exhibit B and I’m adopting those amounts, costs assessed against the defendant.
“. . . My reference wasn’t that the Fair Labor Act applies. It’s the intent of all these statutes that were passed that both parties agree, both parties come in at an arm’s length. This situation is covered specifically by the contract, the policy of the school district. That school district said these premiums will be paid, these holiday pay rates will go into effect if the employees work, period, and so just because they accepted that other eight hours of comp, time doesn’t mean they consented to that and the deal was — and the case was satisfied. . . . The federal statute does not apply to this case.”
The parties agree that this court’s review of the district court’s decision is unlimited. An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
This court has stated that when an employee is made aware of the employer’s policy, which is a part of the terms of the employment contract, both parties will be held to those terms. Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, Syl. ¶ 4, 647 P.2d 1274 (1982). There is no dispute that P4504 governs plaintiffs’ claims in this case.
According to USD 259’s counsel, the policy on holiday pay for security personnel entitles plaintiffs “to the board paid holiday rate plus two times their rate of pay for national holidays, one and a half times their rate of pay for board adopted holidays.” In other words, according to counsel for the school district, USD 259 “would be paying them three times their rate of pay for national holidays and two and a half times their regular rate of pay for hoard adopted holidays.” (Emphasis added.)
USD 259 already has paid plaintiffs two times their rate of pay for national holidays and one and a half times their regular rate of pay for Board-adopted holidays. USD 259 contends that it has fully paid plaintiffs. The school district’s reasoning is that in addition to two times their rate of pay for national holidays and one and a half times their regular rate of pay for Board-adopted holidays, plaintiffs were paid for a day off for each holiday. The paid day off was the pre-P4504 practice. According to USD 259, being paid for a day off plus being paid double for national holidays and time and a half for Board-adopted holidays equals being paid triple for national holidays and double time and a half for Board-adopted holidays.
The plaintiffs, however, show that they sustain a monetary loss when paid for a day off plus being paid double for national holidays and time and a half for Board-adopted holidays. Simply stated, a security person who gets paid triple for a national holiday and works 4 days during that week will be paid the equivalent of 7 days’ pay. A security person who gets paid double for a national holiday, gets 1 day off with pay and works 3 days during that week, will be paid the equivalent of 6 days’ pay.
P4504 requires USD 259 to pay its security personnel triple for a national holiday and double time and a half for Board-adopted holidays. It did not do so, and as a result its security personnel sustained monetaiy loss. Although the security personnel benefited from a paid day off, they were not paid by USD 259 in accordance with its own policy. The plaintiffs never agreed to the unwritten pre-P4504 policy of 1 day off with pay. That was never the agreed compensation for working holidays.
USD 259 also argues that the security personnel have been fully paid under the Kansas Wage Payment Act, K.S.A. 44-313 et seq., and regulations promulgated under it. The definition of “wages” set out in K.S.A. 44-313(c) is “compensation for labor or services rendered.” On the paid days off, which were part of the school district’s superseded scheme of holiday compensation, the security personnel did not render labor or services. Thus, USD 259 argues, plaintiffs are not entitled to be paid additional wages for those paid days off. As we understand this argument, it amounts to USD 259 claiming that the pay for the paid days off is to be treated as holiday pay to bring the holiday pay up to P4504 requirements, and the days off are to be treated as unpaid. USD 259, however, does not direct the court’s attention to any provision of its policy that would permit it to require security personnel to take an unpaid day off in order to receive full compensation for working on a holiday. USD 259 was required to pay the plaintiffs for holidays worked in accordance with the policy contained in P4504. The trial court correctly determined the amount owed the plaintiffs and entered judgment accordingly.
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The opinion of the court was delivered by
Larson, J.:
This condemnation appeal raises two questions: (1) Was it clearly erroneous to separate PIK Civ. 3d 131.04, a jury instruction which relates to the calculation of damages for a partial taking, into three different instructions? and (2) Was it reversible error for extraneous documents included in an exhibit which were admitted into evidence pursuant to the condemnee’s request and over the condemnor’s objection to be considered by the jury? We answer each question in the negative and affirm the trial court.
The Kansas Department of Transportation (KDOT) initiated an eminent domain action against Underwood Equipment, Inc. (Underwood) to acquire 1.01 acres of a 10.6-acre track to improve an interchange at 1-35 and K-68 highways in Franklin County, Kansas. The court-appointed appraisers awarded Underwood $145,000 for the taking.
KDOT was dissatisfied with the award and filed the present action to have a jury determine the just compensation that should be awarded for the taking.
At trial, KDOT presented testimony of expert Bemie Shaner that the values before and after the taking were $490,000 and $445,000, respectively, with total compensation of $45,000 due. The other KDOT expert, Tom Frey, opined the values before and after were $436,800.30 and $402,739.04, respectively, with total compensation of $34,061.26 due.
Glenn Underwood testified that the values before and after were $2,260,000 and $1,965,000, respectively, with total compensation of $295,000 due. David Webb, an expert for Underwood, testified that the values before and after were $1,610,000 and $1,366,246, respectively, with total compensation of $243,754 due.
The testimony of all witnesses included computation of the reduction in value of the property due to loss of the 1.01 tract acre as well as damages relating to moving and replacing various fixtures on the property such as the sewer system, fencing, a tree, and large rocks bordering the property, generally referred to as “costs to cure.”
At trial, during KDOT’s cross-examination of Webb, his appraisal report was marked for identification. The report was used for the limited purpose of showing a discrepancy between Webb’s definition of fair market value and that of other authoritative sources. Webb identified the exhibit as a copy of his appraisal report that he had brought to court that day. After cross-examination was complete, Underwood moved to introduce the report into evidence. KDOT objected, contending the entire report should not be admitted but only relevant portions. The trial court admitted the entire report.
The instructions submitted by Underwood as to the measure of compensation for the partial taking consisted of PIK Civ. 3d 131.04 divided into three separate instructions. There was no objection by KDOT, and the instructions were given as Underwood requested.
During deliberations, the jury returned with the following question: “What County thinks its worth (During Mr. Frey’s testimony)?” The parties were unclear as to the meaning of the ques tion. KDOT’s counsel questioned whether the jury was asking for the county appraised value of the entire property or merely the improvements. KDOT admitted that Frey had testified concerning the county’s appraisal of the improvements, but argued the appraised value for the entire property was not part of the record. During this colloquy, Underwood’s expert witness, Webb, stated it was his belief that the value of the county’s overall appraisal was part of the record because it was included within his appraisal report. The court and KDOT’s counsel indicated they did not realize these documents were included in the exhibit. The court requested that exhibit be taken from the jury room, and the additional documents were found to be contained in the exhibit.
KDOT’s counsel argued the documents should not be permitted to return to the jury because he did not know that at the time exhibit 31 was introduced, it was anything other than an exact duplicate of Webb’s appraisal report. Underwood argued that it would be error to delete the documents since they had already gone to the jury room. The court found that the documents had in fact been admitted into evidence and allowed them to return to the jury.
The jury returned a verdict form which found the values of the property before and after the taking occurred to be $490,000 and $426,000, respectively. The total amount awarded for just compensation was $64,000. This resulted in a $81,000 reduction from the amount awarded by the court-appointed appraisers. Underwood appealed. Our jurisdiction is pursuant to K.S.A. 26-504.
We first consider Underwood’s contention that by dividing PIK Civ. 3d 131.04 into three separate parts and submitting it to the jury as instructions Nos. 9, 10, and 11, the jury was unable to properly compute the cost to cure damages set forth in K.S.A. 26-513(d).
Our standard of review is as stated in Hawkinson v. Bennett, 265 Kan. 564, 581, 962 P.2d 445 (1998): “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict.” This clearly erroneous standard is required because of the lack of any objection on Underwood’s behalf. K.S.A. 60-251(b). Additionally, Underwood not only failed to object but was the party who requested the instructions.
Underwood’s contentions fail for any one of three reasons. The instructions given were those proposed by Underwood. As we have said: “On appellate review, a party may not complain of rulings or matters to which it has consented or take advantage of error that it invited or in which it participated.” Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. ¶ 3, 856 P.2d 906 (1993).
We have also applied the “law of the case” doctrine in situations such as this as we did in Reinsch v. Cities Service Gas Co., 170 Kan. 37, 41, 223 P.2d 741 (1950), where we said: “[A] review of the instructions given by the trial court which, since they were neither objected to when given nor challenged by a motion for a new trial, are not subject to appellate review and, under all our decisions, become the law of the case.” See also Abramson v. Wolf, 138 Kan. 856, 859, 28 P.2d 975 (1934).
Finally, and most importantly, the instructions as given are a correct statement of the law. Instruction No. 1 told the juiy that “[yjou should construe each instruction in the light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence.” (Emphasis added.)
Instruction No. 9 centered the focus on market value and set forth the first three paragraphs of PIK Civ. 3d 131.04. Instruction No. 10 gave the list of factors for the jury to consider in determining market value and included all of the factors that are statutorily set forth in K.S.A. 26-513(d)(l) through (15). These factors clearly directed the jury to consider all of the “costs to cure” evidence which was presented in the trial. Instruction No. 11, the last sentence of PIK Civ. 3d 131.04, commanded the jury to consider those factors not as separate items of damage, but rather as to how they affect market value of the property.
Underwood’s argument that the jury would be unable to consider these instructions together is unreasonable, illogical, and without merit.
We also do not find Van Mol v. Urban Renewal Agency, 194 Kan. 773, 402 P.2d 320 (1965), to aid Underwood’s arguments. The instructions there differ materially and the case is not applicable to our facts.
The “cost to cure” factors were clearly included under subsections (7), (8), (9), and (14) of K.S.A. 26-513(d), which were set forth in instruction No. 10. The testimony for both Underwood and KDOT included loss of value of the acre taken as well as the other costs that would be necessitated by the taking.
The jury was properly instructed. It obviously did not reach a result to Underwood’s approval, but the award was within the limits of the testimony and opinions presented. There was no error in the instructions.
There was likewise no error as the result of certain documents being included within exhibit 31, which was witness Webb’s appraisal report.
It was Underwood who moved for admission of this exhibit over KDOT’s objection. It was Underwood’s expert who included the documents within the report and advised the court of their presence when the jury’s question was being considered.
While Underwood states that “both counsel” did not know the extra information was in exhibit 31, the record reflects that it was the court and KDOT’s counsel who expressed lack of knowledge of the included documents. KDOT objected to the documents being allowed to be considered. Underwood’s counsel contended the documents needed to remain with the jury and now complains about a ruling it requested below.
Underwood’s arguments on appeal that it was prejudicial for the jury to consider these reports fail for the same reasons that the first issue fails.
The trial court’s ruling was correct. The documents had been admitted into evidence and were properly returned to the juiy.
There was no contention of jury misconduct below and issues not raised to the trial court may not be raised for the first time on appeal. Lindsey v. Miami County National Bank, 267 Kan. 685, 690, 984 P.2d 719 (1999).
The record reflects Underwood created the problem, then argued against withdrawal of the documents. Our previous quote from Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. ¶ 3, concerning invited error is again applicable.
Additionally, the jury’s question related to witness Frey’s testimony, and we have no way of knowing whether the documents from witness Webb’s exhibit were a focus of the juiy’s considerations.
This issue is, as we held with the one previously raised, without sufficient merit to require a new trial. This was a fair trial in which the result reached was within the perimeters of the evidence presented.
The trial court is affirmed. | [
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The opinion of the court was delivered by
Brazil, J.:
Decker & Mattison Co., Inc., (D & M) appeals the district court’s decision to quash the garnishment of Charles Wilson’s certificate of deposit (CD). D & M argues the court erred when it determined that proceeds from a workers compensation settlement used to purchase the CD were exempt from garnishment under K.S.A. 2001 Supp. 60-2313(a)(3) and K.S.A. 44-514.
The facts in this case are straightforward. On February 9, 1999, Charles Wilson received $77,449.44 after settling his workers compensation case. Wilson opened a joint savings account in First Commercial Bank in Humboldt with his wife, Janeen, on February 10, 1999, and deposited all but $4000 of the settlement. On April 9, 1999, Wilson withdrew $5,000 from the account and purchased a CD at the same bank. The only deposit in the account prior to the April 9, 1999, withdrawal was the workers compensation settlement.
D & M filed a petition on January 13, 1999, against Wilson and Randy Brown in connection with their business, Brown, Wilson Heating & Air Conditioning. D & M alleged a debt against Wilson and Brown in the amount of $5,851.89, plus interest of $269.36. The district court eventually entered judgment in D & M’s favor against Wilson, but not Brown, in the amount of $3,968.20 on July 27, 1999. The certified copy of the appearance docket indicates Brown was dismissed from the case.
D & M requested that the district court serve the First Commercial Bank a garnishment order in die amount of $6,518.92 on September 25, 2000. The First Commercial Bank, the garnishee, stated in its answer that it was indebted to Wilson in the amount of $5,327.31.
Wilson requested a hearing to dispute the garnishment on the grounds that the funds were exempt from seizure and sale pursuant to K.S.A. 2001 Supp. 60-2313(a)(3) and K.S.A. 44-514. A hearing was held and the district court quashed D & M’s order of garnishment, holding the CD to be exempt property.
D & M timely appealed the case to the Court of Appeals. This court transferred the case pursuant to K.S.A. 20-3018(c).
D & M argues the district court erred in finding Wilson’s CD was exempt from seizure and sale under K.S.A. 2001 Supp. 60-2313(a)(3) and K.S.A. 44-514. The interpretation of a statute is a question of law, and this court’s review is unlimited. Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 124, 992 P.2d 800 (1999).
Workers compensation benefits are generally exempted from seizure and sale to satisfy a judgment as provided in K.S.A. 2001 Supp. 60-2313:
“(a) Except to the extent otherwise provided by law, every person residing in this state shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state:
(3) Any workers’ compensation exempt from process pursuant to K.S.A. 44-514 and amendments thereto.”
K.S.A. 44-514 provides:
“(a) Except as provided in subsection (b), K.S.A 23-4,146 or the income withholding act and amendments thereto, no claim for compensation, or compensation agreed upon, awarded, adjudged, or paid, shall be assignable or subject to levy, execution, attachment, garnishment, or any other remedy or procedure for the recovery or collection of a debt, and this exemption cannot be waived.” (Emphasis added.)
D & M’s argument can be broken into three elements. D & M argues Wilson is not protected from the exemption because the nature of the workers compensation settlement was changed by: (1) the mere establishment of a savings account, which created a creditor/debtor relationship between Wilson and the bank; (2) the establishment of joint ownership with his wife over the savings account; and (3) the purchase of a CD. A review of Kansas law shows none of these events were sufficient to make the exemption inapplicable.
This court in McGhee v. Sinclair Refining Co., 146 Kan. 653, 659-60, 73 P.2d 39 (1937), used strong language to characterize the language in K.S.A. 44-514: “This certainly indicates the intention on the part of the legislature that compensation should go to the injured workman or his dependents, and to no one else.” The court in Egy v. United States Fidelity & Guaranty Co., 8 Kan. App. 2d 144, 148-49, 651 P.2d 954 (1982), aff'd 233 Kan. 234 (1983), held: “In short, and excepting only hens for attorney fees (K.S.A. 44-536; Graham v. Elevator Co., 115 Kan. 143, 145-146, 222 Pac. 89 [1924]), workers’ compensation can only be paid to the claimant and no creditor can reach workers’ compensation paid, being paid or to be paid. (See, for example, McGhee v. Sinclair Refining Co., 146 Kan. 653, 659-660, 73 P.2d 39 [1937].)”
The law governing the exemption of workers compensation benefits is not uniform across states. See Annot, Validity, Construction, and Effect of Statutory Exemptions of Proceeds of Workers’ Compensation Awards, 48 A.L.R.5th 473, 534-53. The following factors are cited by courts as relevant: (1) the particular statutory language granting the exemption; (2) how easily the funds are identified as stemming from the workers compensation award; and (3) whether the character of the award has changed. In Kansas, the statutory language supports extending the exemption protection until after the employee has received the compensation. Further, the funds in this case are easily identifiable. Last, as discussed below, this court has held, albeit in a slightly different context, that holding exempt funds in a CD does not sufficiently change the nature of money such that an exemption is inapplicable.
Statutory Language
As resolution of this case turns on the interpretation of a statute, it is natural to begin with the language of the statute. The subject of the exemption statute in K.S.A. 44-514(a), which is quoted above, is “claim,” which is modified by the prepositional phrase, “for compensation, or compensation agreed upon, awarded, adjudged or paid.” (Emphasis added.) K.S.A. 44-514. With the use of the emphasized words, the Kansas statute clearly contemplates continued protection of the exemption until after the compensation has reached the hands of the employee.
The contrast between the language in the Kansas statute and other states is instructive. There is authority in other states that an exemption of workers compensation benefits from seizure and sale no longer protects the workers compensation check once the claimant is in actual possession of the check. The Ohio Supreme Court - explained the distinction succinctly in Ohio Bell Tel. Co. v. Antonelli, 29 Ohio St. 3d 9, 10, 504 N.E.2d 717 (1987):
“Under R.C. 2329.66, workers’ compensation benefits are expressly exempt from attachment but only as limited by the provisions of R.C. 4123.67. R.C. 4123.67 expressly exempts workers’ compensation benefits only ‘before payment’ is made to claimant. There is no exemption of benefits from attachment provided for under either statute after the award has been paid to the claimant.”
The Antonelli court further noted the state legislature provides for the exemption, and it is up to the legislature to change the extent of protection provided in the exemption. 29 Ohio St. at 11. Oregon and Nevada reach the same conclusion considering not only the statutoiy language, but also statutory amendments omitting language which could have been used for a more extensive exemption. See McCabe v. Fee, 279 Or. 437, 440, 568 P.2d 661 (1977) (“The legislature has deliberately removed an exemption which applied to ‘all moneys paid.’ ”); Hardy & Hardy v. Wills, 114 Nev. 585, 589, 958 P.2d 78 (1998) (“Given the language and history of the exemption statute, we are unable to construe it to exempt compensation once it has been paid to a worker. It is well settled that words in a statute will be given their plain meaning unless doing so violates the spirit of the act.”).
To contrast the approach of the Ohio court, which was dictated by specific statutory language, the analysis of statutory language involving the words “payment” or “paid” leads us to conclude the Kansas statutes exempt funds already in the hands of the worker. See East Moline Works Credit Union v. Linn, 51 Ill. App. 2d 97, 100-01, 200 N.E.2d 910 (1964). As noted above, the Kansas exemption extends to compensation paid.
D & M argues the creation of the debtor/creditor relationship in connection with the savings account ends the protection of the exemption statute. We disagree.
Because K.S.A. 44-514 exempts funds paid, it is consistent with the legislative intent to extend such exemption until after the funds have been deposited in a bank account. D & M suggests Wilson could have avoided the standard debtor/creditor relationship by establishing a “cestui que trust.” D & M cites Bloomheart v. Bank Commissioner, 114 Kan. 786, 221 Pac. 279 (1923). However, Bloomheart merely stands for the proposition that there is a distinction between a standard deposit of funds, in which case the depositor does not expect to receive later the exact thing deposited, and a bailment, in which case the depositor expects to receive the identical thing left, although in altered form. See 114 Kan. at 794-95. The distinction was important in Bloomheart to determine whether the depositor could seek the benefit of the “bank depositors’ guaranty fund” after the bank had closed its doors. 114 Kan. at 787-88.
D & M’s suggestion of a “cestui que trust” is not persuasive. The use of bank accounts, savings accounts, and — as will be demonstrated below — certificates of deposits, is standard practice. To require'recipients of workers compensation to avoid these arrangements would not benefit creditors such as D & M, but would only place a further burden on the injured worker.
Readily Identifiable
As some of the authorities above have suggested, another consideration in the evaluation of the exemption is how easily identifiable the funds are. See Matthews v. Lewis, 617 S.W.2d 43, 46 (Ky. 1981) (“We hold that unless they provide clearly to the contraiy, Kentucky’s exemption statutes, including but not limited to KRS 342.180, extend protection to deposits in bank checking accounts so long as those deposits can be identified as or traced to payments of exempt funds.”); Gaunce v. State ex. rel. Dept. of Human Services, 885 P.2d 688, 691 (Okla. App. 1994) (“The exemption provision has been interpreted to apply beyond the award and judgment phase of rights and has been extended to funds after claimant has received them and even deposited them, provided they were unmingled with other funds.”). In the present case, there is no question but that the money in the savings account originated from exempt funds. Furthermore, because there were no other deposits before the purchase of the CD, the funds used to purchase the CD are likewise easily traced back to exempt funds.
Certificate of Deposit
This court in E.W. v. Hall, 260 Kan. 99, 917 P.2d 854 (1996), considered whether a federal exemption protecting social security benefits would also protect those benefits if they were deposited in a savings account or invested in a CD. The plaintiff in Hall obtained a judgment against the defendant and tried to collect through attachment from the defendant’s bank accounts. The bank, as garnishee, replied to the order of attachment that the defendant owned a CD and a savings account. The defendant asserted the funds in the savings account and in the CD were mostly exempt because they represented funds he received as social security benefits.
As the social security exemption was provided by federal statute, the court applied an unlimited standard of review. 260 Kan. at 100. The Hall court reviewed two Kansas cases and three federal cases interpreting the federal statute. Then the court turned to the plaintiff s arguments. First, the court considered and rejected the plaintiff s argument that an exception to the exemption statute should be created based on public policy. Second, the court considered an argument relevant to the present case. The plaintiff argued “the money in the certificate of deposit has lost its character as social security proceeds.” 260 Kan. at 104.
The Hall court’s analysis of whether an exemption should also cover funds if they are held in a CD focused on a United States Supreme Court decision, Porter v. Aetna Casualty Co., 370 U.S. 159, 8 L. Ed. 2d 407, 82 S. Ct. 1231 (1962):
"In Porter, a judgment creditor was allowed by the lower court to attach VA benefits (subject to a similar exemption from attachment) held in a federal savings and loan association. Because, by virtue of the deposit, the recipient had become a shareholder of the association rather than a creditor, and because his funds were subject to withdrawal only after a 30-day demand, the creditor argued that the funds had lost their exempt status. The Supreme Court rejected this argument. Agreeing with the district court’s assessment that a withdrawal of these funds could be made as quickly as a withdrawal from a checking account, the Court found that these funds retained the quality of monies and thus retained their exempt status. As for the argument that these deposits were permanent investments, the Court noted that they were not of a speculative character nor were they time deposits at interest.’ 370 U.S. at 162. The Court believed that Congress: ‘intended that veterans in the safekeeping of their benefits should be able to utilize those normal modes adopted by the community for that purpose — provided the benefit funds, regardless of the technicalities of title and other formalities, are readily available as needed for support and maintenance, actually retain the qualities of moneys, and have not been converted into permanent investments.’ 370 U.S. at 162.
“The bare reference in Porter to time deposits at interest is not persuasive. Certificates of deposit generally pay higher rates of interest than savings accounts in exchange for some restrictions on access. If immediate access to the funds is less important than the higher interest rate, certificates of deposit are frequently the preferred vehicle of savings deposits. Certificates of deposit are certainly ‘normal modes adopted by the community’ for the safekeeping of funds. We find no legal basis for concluding that funds in certificates of deposit are permanent investments which have lost the quality of money.” 260 Kan. at 105-06.
Although the Hall decision interpreted federal law, it does indicate how this court has viewed the nature of a CD. From the language used in Hall, it is evident that money which has been converted into a CD retains the quality of money such that an exemption which originally protected the money will protect the certificate as well.
Furthermore, just as the Hall court pointed to federal law to supply its rationale of encouraging the safekeeping of social security funds for the support and maintenance of the beneficiaries in standard “modes adopted by tire community for that purpose,” this court can point to the same rationale to permit employers to safeguard their benefits “regardless of the technicalities of title and other formalities.” 370 U.S. at 162. The purpose of our own workers compensation law is to restore earning power lost as a result of injury. Kinder v. Murray & Sons Constr. Co., 264 Kan. 484, 493, 957 P.2d 488 (1998).
Not all jurisdictions extend exemption protection to funds held in a CD. In a letter of supplemental authority, D & M calls this court’s attention to Feliciano v. McClung, 210 W. Va. 162, 556 S.E.2d 807 (2001). Consideration oí Feliciano begs two questions: (1) Is this approach at all appropriate under Kansas law; and (2) if it is, do the facts of the present case require this court to hold Wilson’s CD is likewise an investment subject to seizure? While the Feliciano opinion makes a credible case for allowing a judgment creditor to seize a CD purchased with workers compensation funds, it is not controlling of the present issue. It is not clear from the record that the same equitable balance of interests is at stake in this case. In Feliciano, the judgment creditor was a victim of a horrible intentional tort which was committed by the defendant causing serious and permanent physical injury. There is no indication the present case involves such equitable interests.
Joint Ownership
D & M’s last argument focuses on the joint nature of the ownership of the savings account and CD. D & M argues the definition of “workers’ compensation” as it is used in K.S.A. 2001 Supp. 60-2313(a)(3) does'not include funds jointly held by Wilson and his wife. K.S.A. 2001 Supp. 60-2313(a)(3) exempts “[a]ny workers’ compensation” pursuant to K.S.A. 44-514. D & M somehow argues a workers compensation check that is deposited in a joint bank account no longer meets the definition of “[a]ny workers’ compensation.”
D & M uses the terms “joint tenancy” and “tenants in common” in its brief on appeal. D & M refers to the following testimony of Wilson as authority that Wilson and his wife had a joint tenancy arrangement:
“Q. Is that a joint account?
“A. Yeah, I guess it would be. I got her name on it.
“Q. Well, if you were to die, it is hers?
“A. Correct.”
And with respect to the CD:
“Q. Sure. That certificate of deposit, is that in your name and your wife’s?
“A. Yes, it is, I believe so.
“Q. So she would be a joint owner then of that account or that certificate; is that what you are saying?
“A. Yes, she would.”
The district court did not make a specific finding as to the nature of the ownership.
The parties cite authority for the proposition that garnishment of an account held in joint tenancy results in severance of the joint ownership and creation of a tenancy in common with a rebuttable presumption of equal ownership. See Walnut Valley State Bank v. Stovall, 223 Kan. 459, 462-64, 574 P.2d 1382 (1978).
We can deal with the nature of the joint ownership of the savings account and CD 'by relying on principles cited above. The logical rule with respect to joint accounts should be that workers compensation funds are exempted as long as they are reasonably identifiable and not commingled with other funds. It might be the case that some joint accounts would not pass this test because both joint tenants might be depositing and withdrawing funds, thus making it difficult to identify. However, in the present case, D & M relies solely on the fact of joint ownership without considering how easily identifiable the funds are. Again, the funds used to purchase the CD came exclusively from Wilson’s workers compensation settlement. Likewise, any presumption of equal ownership of a tenancy in common is overcome in this case because the funds were easily identifiable.
D & M also argues the trial court erred in hmiting its cross-examination of the defendant. The admission of evidence lies within the sound discretion of the trial court, and an appellate court’s standard of review, with regard to a trial court’s admission of evidence, is abuse of discretion. Moore v. Associated Material & Supply Co., 263 Kan. 226, 244, 948 P.2d 652 (1997). An abuse of discretion must be shown by the party attacking the evidentiary ruling, and exists only when no reasonable person would take the position adopted by the trial court. Jenkins v. T.S.I. Holdings, Inc., 268 Kan. 623, 633-34, 1 P.3d 891 (2000).
During its examination of Wilson, D & M questioned why all but $4,000 of the net $77,449.44 settlement check was deposited in the savings account. D & M argues the trial court erred in the following:
“Q. Now, in that, from that initial $77,000, did you just cash that check because you didn’t put it all in savings account?
“A. No, I didn’t.
“Q. What happened to the other $4,000?
“[WILSON’S ATTORNEY]: Your Honor, I’m going to object. I don’t understand the relevance of this. This issue is whether the $5,000 that are [sic] in this CD are [sic] subject to garnishment. What happened to the rest of this settlement is not at issue here. The issue is, is this $5,000 exempt from garnishment, and I don’t want to use this as a hearing-in-aid of execution as to what happened to all the other monies. If he wants to do that, he can file a hearing-in-aid. I believe he’s already done that with Mr. Wilson previously.
“[D & M’S ATTORNEY]: Your Honor, my question was directed to how many hands or how many different things comp check go through. We know that it didn’t all go in the savings account or so he testified. How many, how many purchases do we tract it through? I mean, I submit that when it became a deposit, it just became money because relationship, debtor-creditor between Mr. Wilson and the bank was created and they owe him money. Yes, but he, there comes a point, and it’s past that now when what was originally received as workers compensation no longer is entitled to the workers compensation exemption because it’s, it is just money now. We know that it’s gone through at least two, and I am just trying to see if there probably third or fourth [sic] steps or conversion or that’s what my questions [sic].
“THE COURT: I am going to overrule, I am going to sustain the objection.”
D & M argues it was unable to trace the funds from that account.
Wilson argues that any transactions after the money was withdrawn to purchase the CD were beyond the scope of the hearing and, therefore, irrelevant. Wilson concedes on appeal he and his wife deposited funds in the savings account after the April 9,1999, withdrawal; however, anything after April 9,1999, is irrelevant for purposes of this appeal.
Wilson’s attorney began the hearing from which the above language was quoted by stating the following purpose: “This is my motion to quash the garnishment on the grounds that the proceeds are from the Workers Compensation settlement and therefore are not gamishable pursuant to K.S.A. 60-2313.” Those proceeds were in the form of a CD at the First Commercial Bank. Wilson testified the funds in the savings account used to purchase the CD came from his workers compensation and social security benefits; how ever the summary of Wilson’s savings account transactions indicate the only funds in the savings account at the time of the withdrawal for the purchase of the CD were workers compensation funds. Wilson originally deposited all but $4,000 of the workers compensation funds in the savings account; but if the hearing was held to determine where the funds used to purchase the CD originated, the court was correct to prevent D & M’s attorney from asking Wilson about other funds that were never deposited in the savings account. What Wilson did with the $4,000 that was not deposited in the savings account had nothing to do with the funds used to purchase the CD.
Was the district court correct in limiting the issue to the narrow question of ascertaining the origin of the funds used to purchase th.e CD? In its notice of appeal, D & M appealed the district court’s order “in which the District Court found that the Certificate of Deposit was exempt property, and quashed the Order of Garnishment issued to the First Commercial Bank, N.A. of Humboldt, Kansas.” While there is evidence in the record that D & M filed a motion for examination of judgment debtor and an order for a hearing on this motion was scheduled for September 1999, there is no indication in the record what became of this hearing. The court’s order from which D & M appeals is confined to the narrow issue of whether the CD was exempted from seizure and sale pursuant to K.S.A. 2001 Supp. 60-2313(a)(2) and K.S.A. 44-514, and this is the only order D & M appeals. Thus, the district court did not err in limiting the testimony to matters involving the source of the funds used to purchase the CD.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Larson, J.:
This appeal raises the apparent first impression question of whether K.S.A. 22-2302(2) grants an absolute right to a convicted person to obtain a copy of the affidavits or sworn testimony utilized to support the probable cause for his or her arrest warrant.
Vernon P. Thomas pled guilty by agreement to two counts of aggravated burglary, three counts of kidnapping, two counts of robbery, two counts of felony theft, one count of burglary, and one count of misdemeanor theft in November 1994.
The trial court did not follow the State’s recommended sentence of 15 years to life because of the traumatic impact of Thomas’ crimes on the victims and lack of mitigating factors and sentenced him to 30 years to life followed by a 33-month consecutive sentence.
Thomas’ four previous appeals, Nos. 74,253, 77,993,82,225, and 82,426, unpublished opinions, resulted in no affirmative relief except for a remand for resentencing on one count that did not affect his controlling sentence.
In May 1999, and while one of Thomas’ previous appeals was pending, he filed a motion to compel production requesting the district court to order its clerk to send him a copy of the affidavits or sworn testimony provided to the court in support of arrest and search warrants in his case. In the motion, he stated he would send any necessary fee to the clerk for the copies. The motion made reference to a prior request by letter to the clerk wherein the request was made pursuant to K.S.A. 22-2302(2).
The trial court denied the request, stating that since Thomas’ case was currently on appeal and he was represented by counsel, “[a]ny request for documentation must be made through counsel, as counsel may have access to the requested information.”
From this ruling, Thomas has appealed.
Our standard of review of the statutory provisions applicable to this appeal were summarized in KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997):
“ ‘Interpretation of statutes is a question of law. The function of the court is to interpret the statutes, giving the statutes the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
“As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). Thére is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982).” City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 (1985).
“In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. ...” Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).’ ”
In dealing with criminal statutes we are instructed 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. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citations omitted.]” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
And,
“[t]he rule of strict construction means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.” Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001).
The statutory provision which is in issue in this appeal appears in K.S.A. 22-2302, which reads as follows:
“(1) If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that á crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue ....
“(2) Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire.” (Emphasis added.)
The statute is part of Article 23, relating to preliminary proceedings; however, subsection (2) was added to Article 23 nine years after its enactment. L. 1970, ch. 129, § 22-2302; L. 1979, ch. 90, sec. 8.
Thomas argues that under the specific wording of K.S.A. 22-2302(2), he has the statutory right to examine any supporting affidavits or sworn testimony applicable to the establishment of probable cause necessary for the issuance of arrest or search warrants in his case. He specifically states he is not asserting any constitutional or other discovery right to the documents.
The State counters that the statute does not apply to post-conviction requests or, in the alternative, that because Thomas was represented by counsel he did not have a personal right under the statute to the documents.
Although the statutes in issue have been placed in Article 23 of Chapter 22, which is headed “PRELIMINARY PROCEEDINGS,” nothing in the statutory language limits the application of the statute to pretrial matters. If it were so limited, the restrictions relating to third parties could arguably not apply after conviction, and affidavits and sworn testimony would be available without a written court order. Such was clearly not intended by the amendment in 1979, and we will not construe the statute in such a manner to add a limitation not clearly stated. The statute is applicable to both pre-and post-conviction situations and is applicable to our facts.
Having held that K.S.A. 22-2302(2) applies to post-conviction motions, we come to the heart of the parties’ arguments. The State argues the wording “such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel” in 22-2302(2) allows the mandate of the statute to be satisfied by making the documents available to either the defendant or his or her counsel. In this case, the State claims the documents are available to Thomas’ counsel and, thus, the State is not required to make them available to Thomas individually.
Thomas seizes on the second half of the sentence in K.S.A. 22-2302(2), which states: “for such disposition as either may desire.” He contends that because the statute provides for availability of the documentation to both counsel and the defendant, it would be illogical to limit document examination to counsel for a represented defendant.
The wording of 22-2302(2) clearly states the requested documents are to be made available “to the defendant or the defendant’s counsel for such disposition as either may desire.” (Emphasis added.)
We implied in Davis v. Vermillion, 173 Kan. 508, 510-11, 249 P.2d 625 (1952), that generally “or” is to be interpreted as used in the disjunctive: “ ‘[T]he ordinary interpretation given to the word “or” is not as a conjunctive.’ ” Quoting 67 C.J.S. at 518. See also State ex rel. Stephan v. Martin, 230 Kan. 747, 753, 641 P.2d 1011 (1982), where we analyzed the mixed usage of “or” and “and” where true meaning and intent of a statute were in issue. Such .is not necessaiy for the usage of “either,” which is defined as “one or the other” in Webster’s II New Riverside University Dictionary 420 (1988), clearly shows that the defendant’s right to obtain and use the requested information is not limited by his or her being represented by counsel.
The trial court’s ruling that a represented defendant can only have access to the documents through his or her counsel is illogical in light of the statutory language. The plain wording of the statute requires a construction that both a defendant and his or her counsel were intended to have access to the requested documents.
A review of the purpose of the amendment and legislative history leads to the same conclusion. K.S.A. 22-2302(2) begins: “Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court. . . .” This language seems intended to prevent access to affidavits and other sworn testimony in order to keep confidential the names of the individuals supplying the information as well as the information itself. But, the subsection continues: “except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire.” While the statute prevents unlimited access to supporting probable cause documentation, it concurrently does not prevent access to the defense. Not only has the legislature expressly provided the defense access, but it specifically stated that the defense may have access regardless of the reason for the request.
K.S.A. 22-2302(2) was the result of an amendment by the Senate Judiciary Committee to House Bill No. 2124. The language originated in Senate Bill No. 42. Senate Judiciary Committee Minutes, March 29, 1979. Concerning the Senate Judiciaiy Committee amendment to H.B. 2124, the supplemental note on H.B. 2124 states:
“H.B. 2124 amends various provisions of the Kansas Criminal Code. Among the changes recommended by the Senate Committee on Judiciary . . . are the following:
“4. amending K.S.A. 22-2302 and 1978 Supp. 22-2502 to require a court order, except for a request by the defendant or defendant’s counsel, in order to examine affidavits or sworn testimony filed with the district court to support the probable cause determination upon which a search warrant or arrest warrant can be issued.”
The supplemental note on Senate Bill No. 42 states:
“Sections 4 and 5 amend K.S.A. 22-2302 and K.S.A. 1978 Supp. 22-2502 to provide that affidavits or sworn testimony filed with the district court upon which a probable cause determination must be made before either a search warrant or an arrest warrant can be issued, are not to be available for examination without a written court order. The only exception would be to allow, upon request, a defendant or defendant’s counsel to receive the affidavits or sworn testimony.”
Based on the wording of the statute and the legislative history surrounding enactment of K.S.A. 22-2302(2), either a defendant or his or her counsel is entitled to examine affidavits and sworn testimony used in support of the probable cause requirement for an arrest warrant or summons issued in his case. In that an identical provision appears in K.S.A. 22-2502(c), Thomas would also be entitled to examine the same documentation used to support any search warrants in his case. However, he is not entitled to compel production of the documents without first forwarding to the court clerk any necessary fee required by that office to produce and send the documentation.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his convictions of first-degree murder, arson, impairing a security interest, and six counts of criminal solicitation, claiming the trial court (1) lacked jurisdiction over the criminal solicitation charges; (2) failed to suspend the proceedings pending a competency hearing as required by K.S.A. 22-3302; (3) erred in admitting defendant’s statements made to investigators; (4) erred in admitting evidence under K.S.A. 60-455; (5) erred in refusing to instruct the jury on the lesser included offenses; (6) committed cumulative errors depriving him of a fair trial; and (7) erred in sentencing him.
The defendant, Freddie Boorigie, and his wife, Betty Jenell Boorigie (Jenell), were separated. The defendant was living with another woman, Michelle Harrod. On the morning of December 23, 1998, the defendant visited his 6-year-old adopted daughter, Marijke, at the family farm where Marijke lived with her mother. The defendant and Marijke did chores at the farm and returned to the house later that afternoon. The exact time of their return to the house is a disputed fact, but the time frame is between 4:30 and 5 p.m. According to the testimony of Marijke, the defendant went into the house to talk to Jenell, while Marijke played basketball in the garage and waited for her father to return. After a short while, the defendant returned, and he and Marijke left in Jenell’s Suburban automobile to Christmas shop in town.
At approximately 6:20 p.m., a Federal Express driver arrived at the farmhouse to deliver a package. The driver saw smoke pouring from under the eaves and realized the house was on fire. A United Parcel Service (UPS) driver arrived at approximately the same time. The UPS driver checked the doors of the house, then paged his office and requested that they call 911 and report the fire.
At approximately 6:25 p.m., firefighters arrived. The defendant returned to the farmhouse shortly after the firefighters arrived. Defendant initially told the firefighters that no one was home. A few minutes later, the defendant informed the firefighters that his wife, Jenell, was in the house. He informed the firefighters that Jenell had been having trouble with the clothes diyer. He said that to make the dryer work, Jenell would spray WD-40 in the back of the diyer. Boorigie then added, “[Y]ou know what WD-40 and a gas dryer will do.” Firefighters discovered Jenell’s body in the fire debris of the laundry room.
Fire scene investigators concluded that the fire had been deliberately set between 4:45 and 5 p.m. An electrical engineer and fire investigators examined the clothes dryer and the scene of the fire. They determined that although the gas hose to the diyer had been cut and kinked, the cut did not penetrate the inner membrane of the hose; therefore, the dryer’s gas hose was not the cause of the fire. The Kansas Bureau of Investigation (KBI) chemistry unit analyzed debris from the fire and ascertained that the debris contained some gasoline-type hydrocarbons, as well as hydrocarbons from a fuel oil or a heavier petroleum product, which are combustible liquids.
Dr. Erik Mitchell, a forensic pathologist, performed an autopsy on Jenell’s body and concluded that Jenell had died of manual strangulation prior to the fire. The petechial hemorrhages on Jenell’s neck indicated that she had been grasped around the neck and lifted upwards during the strangulation. The doctor also found a fresh blunt trauma injury to Jenell’s temple.
Boorigie was a suspect. When questioned by law enforcement officers, Boorigie blamed Jenell’s murder on Bryan Treetop, a person who had allegedly sold wheat for Jenell, never paid her the proceeds, and left town owing Jenell $300,000. The KBI made an extensive search for Treetop. No record of such a person was found. Boorigie was charged and arrested in Montgomery County. It is important to note that prior to trial Boorigie was held in custody in the Montgomery County, Linn County, and Elk County-jails.
While awaiting trial, the defendant contacted his sister and brother-in-law, Cindy and Thomas Falke, by letter. In the letter, the defendant asked his brother-in-law to tell the police that he was at the Boorigie farmhouse on December 23, 1998, and had observed Jenell slip in the utility room and hit her head on the freezer. The defendant’s sister and brother-in-law refused to make such a statement.
The defendant also asked Michelle Harrod to solicit a mutual acquaintance to confess to the killing of Jenell. Harrod refused to ask her acquaintance to admit to the murder.
Jason Myers, a corrections officer at the Montgomery County Detention Facility where the defendant was temporarily incarcerated, testified at trial that Boorigie offered him $10,000 to help, find someone to confess to the murder. Myers informed the authorities of the offer.
Scott Thomas, an inmate housed in the Elk County Jail with the defendant, testified that Boorigie offered him $50,000 to find someone who would admit that he or she killed Jenell. Thomas testified that Boorigie gave him a hand-drawn diagram of the farmhouse and stated that if Thomas could get someone to admit to the murder, Boorigie could get out of jail, find the real killer, and then get the individual who confessed released from incarceration.
Thomas Espe, another inmate at the Elk County Jail, testified that Boorigie offered him $50,000 or the farm to find someone who would admit that he or she killed Jenell. The defendant also drew a layout of the utility room and indicated the position of Jenell’s body and gave the drawing to Espe. Espe declined to participate in the crime. Espe gave the drawing to a jailer.
Boorigie requested that Lyle Springer, a notary, falsely notarize a deed to the farm that the defendant had backdated to a date prior to Jenell’s death and had signed Jenell’s name. Springer refused.
While released on bond pending trial, Boorigie sold 30 head of mortgaged cattle for $15,000. He did not pay the bank the proceeds of the sale.
Boorigie was rearrested on December 26, 1999, after he assaulted Michelle Harrod. He remained in jail until trial. After a 10-day trial in Montgomery County, Boorigie was convicted of first-degree premeditated murder, arson, impairing a security interest, and six counts of criminal solicitation and was sentenced to life with parole eligibility after 40 years. The district judge also ordered an upward durational departure on the arson charge, doubling the sentence to 38 months, and sentenced the defendant to 7 months on each of the other counts. The sentences were ordered to run consecutively. Boorigie appealed, raising numerous issues.
Improper Venue
Boorigie was charged and convicted in count 6 of criminally soliciting Jason Myers, in Wilson County, to find someone to falsely confess to the murder of Jenell which occurred in Montgomery County. Boorigie was also convicted in counts 9 and 10 with criminally soliciting two men in the Elk County Jail to find someone to admit to killing Jenell.
Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed. K.S.A. 22-2602. The defendant contends that venue for counts 6, 9, and 10 was in Elk and Wilson Counties and that the charges were improperly filed in Montgomery County; therefore, the Montgomery County District Court lacked jurisdiction to convict him of these charges. The State argues that because the criminal solicitation in Elk and Wilson Counties concerned a crime committed in Montgomery County, venue was properly in Montgomery County.
Section 10 of the Kansas Constitution Bill of Rights provides that in all prosecutions, the accused is entitled to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.
Count 6 of the amended information charged:
“That on or about December 20, 1999, Freddie Boorigie, Jr., in Montgomery County, Kansas, did contrary to the statutes of the State of Kansas, unlawfully and intentionally requested [sic] Jason Myers, in violation of K.S.A. 21-3303, to commit the crime of aiding a person charged as a felon, in violation of K.S.A. 21-3812(b), by requesting the said Jason Myers to find and engage an individual to testify falsely at the defendant’s trial that the said individual killed Betty Jenell Boorigie on December 23, 1998, and the defendant did so with the intent that he would avoid trial, conviction and punishment for the felony of the first degree murder of Betty Jenell Boorigie, in violation of K.S.A. 21-3401.”
The facts at trial were that Boorigie initially made arrangements to meet Myers in Montgomery County, but the defendant had miscommunicated with Myers and the two failed to meet. Myers was again contacted by Boorigie, and the two eventually met at a convenience store in Fredonia, Wilson County.
Counts 9 and 10 of the amended complaint charged Boorigie, while in custody for the Montgomery County crime, with criminally soliciting Thomas and Espe in Elk County, Kansas.
Generally, venue lies in the county where a criminal act occurs. K.S.A. 22-2602. However, where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur. K.S.A. 22-2603.
Boorigie did not object to venue at trial. He now argues venue is a jurisdictional issue which cannot be waived and can be raised for the first time on appeal. He cites State v. Redford, 242 Kan. 658, 750 P.2d 1013 (1988), for support. Redford had also failed to object to venue at trial. Citing State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979), the Redford court determined that the defendant’s lack of objection to venue at trial was irrelevant because venue is a matter of jurisdiction. Redford, 242 Kan. at 672.
It is also important to note that in Redford, the defendant was charged with aggravated kidnapping, rape, and various other crimes. The victim had been abducted in Sedgwick County, but evidence indicated that the rape might have occurred in Ellsworth County. Redford was charged in Sedgwick County with kidnapping and in Ellsworth County with rape. The two cases were consolidated and tried in Sedgwick County. The Redford court found that venue was proper in Sedgwick County because the victim’s resistance to sexual intercourse was overcome by fear and force during the initial kidnapping in Sedgwick County. The kidnapping in Sedgwick County was the requisite to the commission of the rape in Ellsworth County. The Redford court concluded that venue for the rape charge was proper in either Sedgwick or Ellsworth County.
The State argues that while there is no authority directly supporting venue for all the crimes Boorigie was charged with and convicted of being appropriate in Montgomery County under these particular circumstances, logical support is found in State v. Jones, 9 Kan. App. 2d 106, 673 P.2d 455 (1983). In Jones, the defendant was being held in the Allen County Jail awaiting trial when he became ill. Defendant was transported to a Kansas City, Missouri, hospital. When he was released from the hospital, he failed to return to Allen County. Jones was later apprehended in another state and returned to Allen County to face the original charge, as well as an additional charge of aggravated escape. Jones challenged the jurisdiction of the Allen County court to try him on the escape charge because he did not commit any act relate'd to his escape in Allen County. The Jones court ruled, however, that Allen County, as the place to which the appellant was obligated to return in order to face the original charge, was the logical venue for the escape from custody charge and that it had jurisdiction to charge and convict the defendant of the subsequent crime. 9 Kan. App. 2d at 107.
Similarly, in this case, Montgomeiy County was the county where the defendant faced the original charges and it was the place in which the crimes the defendant solicited false testimony for were committed. In Jones and this case, the subsequent criminal charges were a direct outgrowth of the original charges committed in the county ultimately exercising jurisdiction to try the defendants. In both cases, the offenders had been taken into custody for crimes committed in that county and then transferred out of the county where they committed acts that gave rise to the subsequent charges. And, much as the appellant’s escape in Jones was aimed at avoiding prosecution in Allen County, Boorigie’s efforts to find someone to falsely testify were for the sole purpose of avoiding prosecution in Montgomery County. Comparing these similarities, and corisidering the direct link between the Montgomery County criminal charges and the crimes committed in Elk and Wilson Counties, it is logical that Montgomeiy County was a proper venue for the prosecution of the defendant’s solicitations for false testimony.
Additional support for trying the defendant in Montgomery County for all the crimes committed is found in K.S.A. 22-2607. K.S.A. 22-2607(a) allows for the prosecution of someone who, among other things, “advises, counsels or procures another to commit a crime,’’ in the county where the principal crime was committed even if the act of advising or procuring another to commit the crime took place outside the county.
We note that where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur. See K.S.A. 22-2603. The nexus for counts 6, 9, and 10 were defendant’s requests in Elk and Wilson Counties for individuals to find someone to falsely confess to the murder that occurred in Montgomery County. Under K.S.A. 22-2603 and the rationale of the Redford court, prosecution for count 6 was proper in either Wilson or Montgomery County and prosecution for counts 9 and 10 was proper in either Elk or Montgomery County.
Proceedings Pending a Competency Determination
During a pretrial hearing on March 13, 2000, counsel for the defendant orally moved for a competency evaluation:
“MR. BROWN: I have a matter as far as an oral motion on a competency evaluation request. Do you want to do that now?
“THE COURT: That’s fine. We can do that now.
“MR. BROWN: I indicated to the Court and counsel I visited with my client and I don’t want to go into specifics, but given the things that have occurred since I’ve come into the case, I think a competency evaluation would be warranted. I believe we have a local mental health facility available to do this.
“THE COURT: That wouldn’t slow things down. Any objection by the State?
“MR. BORK: The State has no objection with the motion, Your Honor.
“THE COURT: Motion will be granted and I think that can be performed here by Four County Mental Health.
“MR. BROWN: And I might be mistaken, but don’t we need to do an arraignment on the 2000 case?”
A competency evaluation was ordered. The district judge then proceeded to the pending arraignment and ruled on several other mo tions. The court received the results of the evaluation prior to trial. On the morning of trial, the district judge stated:
“The first matter we need to take up has to do with the motion for competency determination. It is my understanding that Mr. Boorigie has been through that process, and in fact this morning when I got here, I received an envelope. Apparently it was mailed several days ago, but I only got it this morning, but it contains tire report from Four County Mental Health and in sum that report indicates Mr. Boorigie is competent to stand trial. I’ll just simply ask counsel for defense do you have anything additional to add?”
Neither the defense counsel nor the prosecutor stated any additional information. The judge continued:
“All right. Based on the conclusions in the report, I’ll make a finding for the record then, Mr. Boorigie, that you are competent to stand trial.”
Boorigie contends that the trial court violated Boorigie’s statutory and due process rights when it failed to stay all proceedings pending a determination of whether he was competent to stand trial. K.S.A. 22-3302 provides, in part:
“(1) At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant’s counsel or the prosecuting attorney may request a determination of the defendant’s competency to stand trial. If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the [criminal] case is pendingfinds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of tire defendant.” (Emphasis added.)
Boorigie now argues that tire statute clearly states that if the judge finds reason to believe the defendant is incompetent, all proceedings shall he suspended until competency of the person charged can be determined. The State asserts that the statute is directory rather than mandatory. The State then argues that even if the statute is mandatory, Boorigie invited error when after the motion for a competency evaluation was granted, his counsel suggested that other matters be taken up by the judge.
Here, based on the statement of defense counsel, the judge had reason to doubt Boorigie’s competency. Was it error for die district judge to continue with motions and other proceedings pending an evaluation? First, we note that defense counsel requested that the judge continue with the arraignment on the 2000 case. A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999). Furthermore, the defendant’s subsequent competency evaluation determined that the defendant was competent to stand trial. Although Boorigie suggests that he may have been incompetent at the time of the arraignment oh the 2000 case and subsequent pretrial motions conducted prior to the competency evaluation, he was found to be competent.
Boorigie is unable to state any decisions the judge made during that period in which the proceeds should have been suspended that may have prejudiced his rights to a fair trial. Under our circumstance, it does not matter if the statute is directory or mandatory. Errors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done. State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997).
Admission of Defendant’s Statements
During trial, the court excused the jury from the courtroom and held a Jackson v. Denno hearing to determine the admissibility of prior statements made by the defendant to police. The relevant facts are:
On March 19, 1999, charges were filed against the defendant. On March 29, 1999, the defendant was represented by retained counsel, Bruce Borders, in a hearing where the amount of bond was discussed and the preliminary hearing was scheduled. He was again represented by Bruce Borders on April 20,1999, in a hearing on the issue of bond. On May 4, 1999, Stephen Joseph entered his appearance as co-counsel for the defendant. At the preliminary hearing on June 7, 1999, the defendant was represented by Stephen Joseph and Bruce Borders. On November 16, 1999, Joseph moved to withdraw, and on November 17, 1999, Borders moved to withdraw. Both motions were granted. The defendant indicated to the judge that he “hoped or expected, or wanted to be able to retain Joseph and Borders, but hadn’t done that yet.” The judge tentatively appointed John Gillett on December 16,1999, but Gil lett advised the court the next day that he would not enter an appearance. Gillett filed a motion to withdraw on December 27, 1999. An order was entered on that same day granting Gilletts motion. On December 29, 1999, the court spoke to attorney Michael Brown by telephone. Brown said he was willing to enter an appearance on behalf of the defendant. Brown did not enter an appearance at that time, however, because the court had set a telephone hearing for Januaiy 3, 2000, to ascertain whether the defendant had retained his other counsel. Brown was appointed by the court to represent the defendant on Januaiy 6, 2000.
While the defendant was released on bond, he violated the terms of his bond and was rearrested on December 26, 1999. On December 29, 1999, during the period when the defendant was not represented by counsel and was incarcerated at the detention center, Kevin Kitterman, an investigator with the State Fire Marshall’s office, had the defendant transferred from the Montgomery County Detention Center to the sheriff s office to interview the defendant.
Kitterman and another officer asked the defendant if he was represented by counsel. The defendant indicated that he was not. The officers then asked the defendant if he was willing to talk to them. The defendant agreed, and the officers then advised him of his Miranda rights. The defendant acknowledged his rights and signed the Miranda form. The officers then interviewed the defendant.
During the interview, the defendant told the officers that Jenell had wanted to become more involved in the farming operation, so he allowed her to contract the wheat hauling. According to the defendant, she contracted with a wheat hauler named Bryan Treetop. The defendant stated that he had given information about Treetop to his attorneys and that his attorneys were supposed to give that information to the police. The defendant also said that he had hired a private investigator to find Treetop. The defendant continued to focus on Treetop as the murderer, reiterating his theoiy that Treetop killed Jenell because Treetop owed Jenell $300,000 and would not have to pay her if she were dead.
The officers related to Boorigie that when they arrived at the burning house, the door was locked. The defendant answered that it was customary for Jenell to lock the house when she was home alone. The defendant asked the officers if they had found a key to the house during their search of the house. When the officers said that they had not, he told them that there was a key missing. The defendant noted that he, Jenell, and possibly Debbie Fox, Jenelf s cousin, had keys to the farmhouse. He speculated that whoever killed Jenell was in the house at the time he and Marijke returned to the house on the afternoon of the murder.
The officers then confronted Boorigie with evidence that there may have been two or three prior attempts by the defendant on Jenell’s life. The defendant acknowledged to the officers that a short time before her death, Jenell had suffered an electrocution while helping him with some electric fencing and that on another occasion someone had put sedatives in Jenell’s coffee. Boorigie admitted that Jenell suspected him of trying to kill her, but denied doing so. The officers then asked him about an incident where Jenell opened the door of a trailer on the property and was hit by a blast of heat or fire because someone had left the propane on in the trailer. He denied being there at the time.
Boorigie admitted to the officers that he had an affair with Jenell’s good friend and that the woman had a child by him. He also admitted to going to a notary and attempting to get Jenell’s signature notarized on a deed.
The officers then confronted Boorigie with die allegation that he had solicited Myers to find someone to confess to killing Jenell. Boorigie admitted that he had offered Myers $10,000 to find Treetop and had offered another man $20,000 to find the killer.
When the officers told Boorigie that Marijke was saying that he had gone back into the house on the afternoon of the fire, defendant admitted that he was briefly separated from Marijke while they were at the farmhouse on the afternoon of the fire and that during that time he had gone back into the office area of the shop.
Boorigie asked the officers to investigate whether a $1,000 social security check, $400-$500 in cash, and Jenefl’s jewelry were missing from the farmhouse. The defendant told the officers about a post office box he kept in Independence where he received correspondence he did not want Jenell to see. Boorigie also admitted to physically harming Michelle Harrod when he found that she had slept with her ex-husband.
The court ruled that Boorigie’s statements made in custody was admissible. At trial, Boorigie’s attorney objected to testimony relating to the statements. On appeal, the defendant contends that his statements to the officers were entered into evidence in violation of his Fifth and Sixth Amendment rights to counsel and, in addition, the statements unfairly damaged his credibility with the jury. The State argues that the admission of Boorigie’s statements was not in contravention of a defendant’s constitutional rights because, at the time of the interrogation, Boorigie was not represented by counsel. The State argues that at the time of the interview the defendant had not obtained substitute counsel, nor asserted his Sixth Amendment right to counsel, and knowingly waived his right not to talk with law enforcement officers prior to making the statements. The State argues that under these circumstances, Boorigie’s statements to the officers were admissible.
The Fifth Amendment protection against compelled self-incrimination provides the right to counsel during custodial interrogations. Edwards v. Arizona, 451 U.S. 477, 482, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied, 452 U.S. 973 (1981). The Sixth Amendment which guarantees assistance of counsel also provides the right to counsel at postarraignment interrogations. United States v. Gouveia, 467 U.S. 180, 81 L. Ed. 2d 146, 104 S. Ct. 2292 (1984). Once the defendant is in custody for a crime, efforts to elicit incriminating information from the accused, including law enforcement officers’ interrogation, represent critical stages at which the Sixth Amendment applies. Massiah v. United States, 377 U.S. 201, 205, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964).
The rules concerning custodial interrogation and the defendant’s exercise of a constitutional right are well established. A suspect in custody must be advised that he or she has the right to remain silent and the right to the presence of counsel before the suspect may be interrogated. Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). If the accused asks for coun sel, the interrogation must cease until counsel is present. 384 U.S. at 474; see Edwards, 451 U.S. at 481-82.
“[Wjhen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights .... [A]n accused . . . having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U.S. at 484-85.
Boorigie had asserted his right to remain silent. In determining whether events subsequent to tire exercise of a constitutional right constitute a waiver of the previously asserted right, the court must first determine whether the accused actually invoked the right and, if so, the court must then determine whether the accused (a) initiated further discussions with the police and (b) 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).
In Minnick v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990), the State of Mississippi proposed an exception to the Edwards rule that police-instigated interrogations without counsel present after the suspect requests an attorney violate a suspect’s right to counsel under the Fifth and Fourteenth Amendments. The State asserted that the protection of Edwards terminated once counsel had consulted with the suspect. The United States Supreme Court rejected the State’s proposition, stating:
“The exception proposed, furthermore, would undermine the advantages flowing from Edwards’ ‘clear and unequivocal’ character. Respondent concedes that even after consultation with counsel, a second request for counsel should reinstate the Edwards protection. We are invited by this formulation to adopt a regime in which Edwards’ protection could pass in and out of existence multiple times prior to arraignment, at which point the same protection might reattach by virtue of our Sixth Amendment jurisprudence, see Michigan v. Jackson, 475 U.S. 625 (1986). Vagaries of this sort spread confusion through the justice system and lead to a consequent loss of respect for the underlying constitutional principle.” 498 U.S. at 154-55.
The Minnick Court held that when counsel is requested by the accused, all interrogation must cease, and officials may not reini tiate interrogation without counsel present, whether or not the accused has consulted with his attorney. In context, the requirement that counsel be “made available” to the accused refers not to the opportunity to consult with an attorney outside the interrogation room, but to the right to have the attorney present during custodial interrogation. The Minnick Court found that this rule was appropriate and necessary, since a single consultation with an attorney does not remove the suspect from persistent attempts by law enforcement officials to persuade a defendant to waive his rights and from the coercive pressures that accompany custody and increase as it is prolonged. 498 U.S. at 151-52.
Here, the police initiated the custodial interrogation with Boorigie which led to statements later used by the State in its case in chief against the defendant. The interrogation concerned the crimes for which the defendant had retained an attorney to represent him. The questions are (1) whether the retaining of an attorney by the defendant in the early stages of the prosecution constituted an invocation of his right to be represented by an attorney, foreclosing any further police-initiated interviews, and (2) whether the fact that the police-initiated interview took place at a time after defendant’s retained attorney withdrew and before another attorney entered an appearance in the case affects the outcome.
In U.S. v. Harrison, 213 F.3d 1206, 1213-14 (9th Cir. 2000), the court saw no reason to ignore Harrison’s representation merely because it began before indictment. The court observed that anyone who retains counsel in connection with a criminal investigation would consider himself or herself to be represented in the event charges are brought and would not expect to be required to affirmatively reassert that representation. The court concluded a defendant invokes the Sixth Amendment right to counsel as a matter of law when (1) the defendant retains counsel on an ongoing basis to assist with a pending criminal investigation; (2) the government knows, or should know, the defendant has ongoing legal representation relating to the subject of the investigation; and, (3) the eventual complaint brings charges precisely anticipated by the scope of the pre-indictment investigation. 213 F.3d at 1213.
Based on Harrison, the State’s argument that Boorigie did not assert his right to counsel fails. Here, Boorigie asserted his right by retaining counsel to assist with the defense of his case. The law enforcement officers were aware that although not represented by counsel during the interview, Boorigie had previously retained counsel. The next question is whether the fact that tire police-initiated interview took place at a time when the defendant was not represented by counsel and the defendant signed a waiver of the right to counsel’s presence nullifies Boorigie’s assertion of his right to counsel.
It was the right to deal with the police only through counsel that was asserted by Boorigie when he invoked the right to counsel by retaining an attorney to represent him in this case. Although his retained counsel subsequently withdrew, it is clear that the State knew that Boorigie wanted to be represented by counsel — the judge stated that he had contacted substitute counsel but was awaiting the defendant’s answer regarding whether he could get his own attorney to reenter the case before appointing substitute counsel. Under such circumstances, Boorigie’s statements admitted into evidence in the State’s case in chief would violate the defendant’s right to counsel if incriminating.
The State argues that even if the defendant’s statements to police were erroneously admitted into evidence, the erroneous admission is not grounds for reversal because Boorigie’s statements to the officers were the same exculpatory statements he had previously made to officers. We note that the Sixth Amendment requires suppression of an accused’s statement if, after the initiation of adversary proceedings, the State, or its agent, deliberately elicited an incriminating statement. See Massiah, 377 U.S. at 206.
We have previously stated that a “confession,” in a legal sense, is an acknowledgment of guilt made by a person after an offense has been committed and does not apply to a mere statement or declaration of an independent fact from which such guilt may be inferred. When a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. State v. Green, 254 Kan. 669, 683, 867 P.2d 366 (1994).
We note that the defendant’s statements to the officers were consistent with his earlier statements of innocence to the officers. The statements did not infer guilt or incriminate him. The facts that convicted the defendant were admitted into evidence through other witnesses and were overwhelming. Under the circumstances, the admission into evidence of the defendant’s exculpatory statements to officers while in custody and without his attorney being present was not error.
K.S.A. 60-455 Evidence
Three requirements must be satisfied to admit evidence under K.S.A. 60-455. First, the evidence is relevant to prove one of the facts specified in the statute. Second, the fact is a disputed, material fact. Third, the probative value of the evidence outweighs 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. Lane, 262 Kan. 373, 388, 940 P.2d 422 (1997).
Over the objection of the defendant, the trial court admitted into evidence three categories of prior bad acts: violence against former wives, previous fires, and prior insurance claims made by the defendant. Boorigie contends that this evidence was inadmissible because it prejudiced his right to a fair trial. The State argues that each of the categories of evidence admitted was relevant to prove facts allowed by K.S.A. 60-455 and that the probative value of such evidence outweighed its prejudicial effect.
Violence Against Former Wives
At the hearing on the State’s motion to admit prior bad acts pursuant to K.S.A. 60-455, the prosecutor pointed out that the evidence at trial would show that the victim died of strangulation, probably by someone’s hands, prior to the start of the fire. There was bruising to the back or the side of the skull, which was consistent with a person placing his or her hands around the victim’s neck and slamming her head against a wall. The prosecutor noted that at the time of the murder, the victim and the defendant were separated, and the defendant was having an affair with another woman. The prosecutor compared the facts of the defendant’s abuse of Jenell and his prior wives, then argued the defendant’s prior acts of violence against his former wives were relevant to prove identity of the killer and his intent, plan, and absence of mistake or accident.
The judge noted that although the prior abuse did not result in convictions, it was relevant to the State’s allegations, the wives were available to testify and would be subject to cross-examination, and the jury would be able to weigh the evidence appropriately. Then, noting the similarity between the prior bad acts and the allegations against Boorigie, the judge overruled the defense objections and granted the prosecutor’s motion to admit the evidence pursuant to K.S.A. 60-455.
Carol Banning testified that she was married to Boorigie from 1979 to 1985. During most of the marriage, she lived in the rural residence where the fire and murder of Jenell occurred. During her marriage to Boorigie, the defendant was abusive to her on numerous occasions. When he was angiy with her, defendant would grab her around the neck and throw her across the room or up against the wall. He would often pick her up by the neck and tell her that she was not going to talk to anyone about his business. This type of abuse occurred at least twice a month. She noted that Boorigie’s abuse of her seemed to get worse when the defendant was having extramarital affairs. The defendant would threaten Banning that she would never see the children again or that he would make sure that she would not talk anymore.
Jane Robles testified that she was married to Boorigie from 1985 to 1994. During that time, she and Boorigie lived in the same rural residence as did Banning and Jenell. During the marriage, Boorigie and Robles often quarreled. When Boorigie became angry, he would lift Robles by the neck and throw her.
Robles related specific occasions when Boorigie had attacked her. On one occasion, the defendant had previously reported to an insurance company that his farm implement, a 36-foot disk, had been stolen. Robles later found out that the disk was actually on a farm in Oklahoma. During an argument, Robles threatened to tell the insurance company where the disk was located. Boorigie be came incensed and tore the telephone from the wall. He then attacked her, tore off the nightgown she was wearing, and burned it.
On another occasion in 1992, Boorigie placed a hot iron on the carpeted floor after he became enraged with Robles. The iron left a burned spot on the rug. Boorigie then threatened to bum the house with Robles and her children in it.
It is important to note that it is not necessary under K.S.A. GO-455 that prior offenses be identical in nature to the offense for which the defendant is on trial; it is sufficient if the offenses are similar. Lane, 262 Kan. at 390. The similarities between the prior abusive acts and the facts of this case are striking. As such, the evidence was relevant under K.S.A. 60-455 to prove a disputed, material fact at trial. We find that the probative value of the evidence outweighed its potential prejudice; therefore, the trial judge did not abuse his discretion in admitting the evidence.
Evidence of Previous Fires
At the preliminary examination, the State had presented evidence of 16 previous fires with which the defendant was associated. The State was restricted to presenting evidence of four of those prior fires at trial.
The first of the fires occurred in 1983. This was a fire in a shed located directly behind the house where Jenell was living at the time of her death. At the time of the fire, the defendant was married to Banning. Boorigie had moved his farm equipment into the shed and was in the process of wiring the shed with the help of another person. After working in the shed on the morning of the fire, Boorigie left the property, telling Banning he was going to town. Shortly after Boorigie left, Banning looked out the window and saw that the shed was on fire. As she picked up her daughter and started to leave the house, the telephone rang. Boorigie was the caller. He wanted to know if anything was wrong. The building and equipment in it were destroyed by the fire.
The next fire occurred about 1 year after the shed fire. The defendant owned a lime tmck used to spread lime on crop land. On the day of the fire, Boorigie, who had been working on the brakes of the tmck, came into the house to tell his wife that he was going to his mother s house, which was 3 or 4 miles away. Boorigie did not take his daughters with him, which was unusual. Shortly after Boorigie left the house, he returned to tell his wife that they did not have to worry about the lime truck anymore because it had gone into the creek and that a fire had started around the lime truck after it went into the creek. Boorigie made an insurance claim for the damage to the truck.
The third fire occurred in a hay bam on a ranch where Boorigie was farming a growing crop in 1992. The defendant appeared at the scene of the fire, saying he had seen the fire from U.S. Highway 75, which was about 2Vz miles from the ranch. The owner of the ranch did not believe it was possible for the defendant to have seen the fire from the highway. A spraying rig belonging to the defendant was destroyed in the fire. Boorigie and the ranch owner negotiated a settlement for the destroyed sprayer.
The final fire occurred in a wheat field the defendant was farming at the Mullendore Ranch in 1998. Boorigie claimed that he had harvested the field prior to the burning and claimed an insurance loss for poor yield. When the insurance investigator examined the field, he discovered that the field had been burned before it was harvested.
Again, we note that a conviction is not a prerequisite to introduction of a prior offense under K.S.A. 60-455. State v. Myrick & Nelms, 228 Kan. 406, 420, 616 P.2d 1066 (1980). Admission of evidence under K.S.A. 60-455 to show plan may be upheld on the theory that the evidence, although unrelated to the crimes charged, shows the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes. State v. Tiffany, 267 Kan. 495, Syl. ¶ 3, 986 P.2d 1064 (1999).
The evidence that Boorigie had previously been associated with mysterious fires supported an inference that Boorigie was familiar with the use of fire as a way of solving problems. The evidence of the prior fires was relevant to prove identity or plan, both disputed facts at trial, and the probative value of the evidence outweighed its potential prejudice. The trial judge did not abuse his discretion in admitting the evidence.
Prior Insurance Claims
During the hearing on the prosecutor’s K.S.A. 60-455 motion, the prosecutor proposed introducing evidence that although the defendant’s prior claims were suspicious, the insurers elected not to prosecute defendant for fraudulent claims because it was more cost efficient to pay the claims than to litigate them. The trial judge expressed concern regarding the prejudicial nature of such evidence:
“I guess my concern is if [the] motive [for] introducing evidence of prior years average receipts from insurance benefits were simply to show Mr. Boorigie’s sophistication in understanding how insurance could be available down the road, that’s one thing. The prejudicial part of it is that it would give the appearance that all of those prior claims were questionable, and yet there’s not going to be any evidence to show that, so it’s going to be conjecture, and that would seem to me to be highly prejudicial.”
The prosecutor then agreed to limit the evidence to testimony that the defendant filed claims annually and was paid on those claims an average of $78,000 a year until 1995, when the insurers discontinued payments. The prosecutor argued that the evidence was relevant to show that the defendant had a financial need and that life insurance proceeds were available; hence, there existed a financial motive for killing Jenell and burning the house. The court agreed to admit the evidence.
At trial, the prosecutor introduced evidence that Boorigie had received insurance payments averaging approximately $83,000 a year from the government for the years 1989 to 1995. A compliance investigator for the Department of Agriculture testified on direct examination:
“Q. Now, if we do a little bit of math here and if we combine the last five years payoff from the State of Kansas and the State of Oklahoma, how much would that represent of an annual payment for Mr. Boorigie, Junior, for those last five years?
“A. That average payment would be $83,114.00.
“Q. Now both for Kansas and in Oklahoma the last payment was what year?
“A. 1995.
“Q. Okay. And when did you visit — when did you meet Jenell Boorigie, Junior?
“A. Um, the first time I met Jenell was July 17, 1996.
“Q. And what was die purpose of that meeting?
“A. To obtain records we had requested from Mr. Boorigie, um, on production, seed, fertilizer, chemical tickets.”
There was no objection to the testimony by defendant’s counsel.
At the close of evidence, the judge instructed the jury:
“Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. That evidence may not be considered by you as evidence of a general disposition on the part of defendant to commit crime. It may only be considered by you as follows:
“1. Evidence of prior fires may only be considered by you for the purpose of proving defendant’s identity, motive, knowledge, intent and plan as to the arson charged in Count 2 or in the Alternative Count 2.
“2. Evidence of prior crimes against defendant’s ex-wives may only be considered by you for the purpose of proving defendant’s intent, identity, plan and absence of mistake or accident as to the charge of murder in Count 1.
“3. Evidence of prior insurance claims may only be considered by you for the purpose of proving defendant’s motive, intent, plan and identity as to the charge of murder in Count 1 and the charge of arson in Count 2 and the Alternative Count 2.
“4. Evidence of correspondence between defendant and Cindy Fallce setting forth defendant’s attempt to have an unknown person claim responsibility for the death of Betty jenell Boorigie may only be considered by you for the purpose of proving defendant’s identity, motive, knowledge, intent, plan and absence of mistake as to the charge of. murder in Count 1; the charge of arson in Count 2 and the Alternative Count 2; and the charges of criminal solicitation in Counts 4, 5, 6, 9, and 10.”
Boorigie asserts that the witness testified that he met with the Boorigies for the first time in 1996 to collect supporting documentation about the crops and expenses, and that after that, the defendant received no further payments. The defendant contends that the evidence strongly suggests that there was something improper about the insurance claims — the inference the trial court specifically sought to avoid by limiting the evidence admitted. When the trial record is read in context, the testimony does not suggest that the insurance claims were suspicious.
As presented, the evidence of prior insurance claims tended to prove that the defendant had a financial motive for murder and arson. As such, the trial judge did not abuse his discretion in admitting the evidence.
Lesser Included Offenses
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant’s theory, would justify a jury 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. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997).
At trial, the defendant requested a jury instruction on second-degree murder and voluntary manslaughter as lesser included offenses of first-degree premeditated murder. The trial court refused to instruct on either of the lesser included offenses, reasoning:
“Looking at it from the point of the view of the jury, and what evidence is available for them to consider, first of all, there is evidence that there were prior incidences between the parties and between the Defendant and his prior wives, what have you, that might lead to a basis for finding heat of passion, spur of the moment type scenarios. However, in the evidence in this case, the only evidence that the jury has to consider is that on the day of the lulling there was no argument. There’s no quarrel. There’s no evidence of any heat of passion issues. The only evidence is that, um, the circumstantial evidence concerning the prior acts of violence that would lend themselves towards the issue of premeditation. Absent some evidence for the jury to rely on to make a finding of heat of passion, then the included offense of voluntary manslaughter just simply doesn’t apply. In regard to the second degree murder, that’s an intentional lulling. There’s evidence that she was intentionally killed, but in order for the jury to make a finding of intentional lulling without premeditation, they again would need to take into consideration what other evidence is there, and the only evidence that is there would lend itself to support planned intent to dispose of her. I’m talking about the prior evidence concerning electrocution and that type of thing, so although normally I think it’s the better practice to include a lesser included instruction for the juiy, it’s improper to do that if there isn’t some evidence for them to make that finding on. The evidence is there that this was an intentional lulling. The only other evidence that we have has to do with Mr. Boorigie and the prior incidents between the two individuals, and the only tiling that I can see that the evidence would support would be a finding of premeditation, if they, in fact, find that Mr. Boorigie did it. They’re going to have to find whether he did or didn’t, and if they find he did, the only evidence surrounding the relationship would indicate a premeditation, because of the prior acts that were put out, so I don’t know that they’ll find that, but I think based on that, the only proper instruction would be strictly an all or none on first degree murder, and if they find to not choose premeditation, then he will be acquitted. The State’s going to have to live with it the same as the defense would.”
Boorigie contends that the prosecutor’s evidence that Boorigie had a quick and violent temper and would fly into rages when provoked was sufficient to support an instruction for the lesser included offenses. The State points out that Boorigie’s defense was that he did not commit the acts that constituted the crime.
The K.S.A. 60-455 evidence indicated that the defendant had a violent temper. It illustrated that the defendant had used his temper to control his spouses. As to the present crimes, we note that Jenell was manually strangled and that her death required at least several minutes of constant pressure around her neck. The several minutes required to effect strangulation supported a finding of premeditation. In addition, there was evidence that the defendant had attempted to kill Jenell at least twice in the 2 months preceding her death.
The jury was presented with two choices: the defendant was not guilty of premeditated murder and arson or the defendant was guilty of premeditated murder and arson. The trial court was correct — there was no evidence that the murder and arson was not a premeditated act, perpetrated for the purpose of financial gain.
Cumulative Errors
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. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Bedford, 269 Kan. 315, 332-33, 7 P.3d 224 (2000).
Our review reveals no prejudicial trial errors. Therefore, the defendant’s argument that he was denied a fair trial fails.
Improper Sentencing
First, the defendant asserts that the Kansas hard 40 sentencing provision is constitutionally infirm under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The defendant recognizes that we have previously held contrary to his assertion in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000).
In Syl. ¶ 3 of Conley, the court stated:
“Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by the jury does not increase a defendant’s maximum sentence of imprisonment for life imposed under K.S.A. 21-4706(c). The hard 40 sentence limits the lower end of the sentence. Defendant’s hard 40 sentence violates neither the Due Process Clause of the United States Constitution, nor Iris right to trial by jury under the 6th Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights.”
The defendant raises this claim to preserve that issue for federal review.
Hard 40 Sentence
Next, the defendant contends that the evidence does not support the imposition of the hard 40 sentence.
The trial judge found the existence of two aggravating factors: (1) The defendant committed the crimes for the defendant’s self or another for the purpose of receiving money or something of monetary value; and (2) the crime was committed in an especially heinous, atrocious, or cruel manner.
There is evidence that Boorigie was in a financial bind. A compliance investigator for the Department of Agriculture testified that for the period of 1989-1996, the defendant had been paid an average of $83,114 per year in insurance losses. He further testified that there were no payments made to Boorigie after 1995. A financial statement filed by the defendant in an unrelated child support case recited that Boorigie owed Jenell $217,000 for money that she had put into the farm. Katsy Cluck, who managed the Mullendore Ranch which Boorigie had farmed until 1998, testified that Boorigie had not paid her for all the grain he had harvested in 1997. The defendant had stated that the amount of wheat money that tire alleged Bryan Treetop owed Jenell was $300,000.
The State presented evidence that Boorigie was the beneficiaxy of two life insurance policies on Jenell. Both were double indemnification policies and would pay double the face amount if Jenell’s death was determined to be accidental. One policy was for $300,000 and would pay $600,000 in the event of an accidental death; the other was for $400,000 and would pay $800,000 for an accidental death. A gas explosion or fire would be considered an accidental death.
After reviewing the evidence, the trial judge found no mitigating circumstances. He considered the fact that Boorigie had no prior criminal history as a mitigating factor, but rejected it because the defendant “had a course of conduct that raised questions, I think, in everybody’s mind, including the juiy’s and myself about what was going on with him and things he was doing.”
The evidence indicates that die defendant needed money and he stood to profit by at least $1,400,000 as a result of his wife’s death. The evidence also strongly suggests that the defendant’s lack of criminal history was the result of the defendant avoiding prosecution rather than the defendant’s lack of criminal activity. We have previously noted that the existence of one aggravating circumstance may alone be sufficient to support the hard 40 where the mitigating circumstances are so weak that the one aggravating circumstance clearly outweighs them. State v. Murillo, 269 Kan. 281, 289, 7 P.3d 264 (2000). We find that the trial court did not err in imposing the hard 40 sentence.
Finally, Boorigie argues that the trial court erred in imposing an upward departure sentence for the arson conviction. The State concedes that pursuant to this court’s holding in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), an upward durational departure in a criminal sentence under K. S. A. 2001 Supp. 21-4716 is unconstitutional and must be reversed. We agree.
Defendant’s convictions are affirmed. His upward durational departure sentence on the arson conviction is vacated, and the matter is remanded for resentencing.
Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
National Beef Packing Company (NBP) and Wausau Underwriters Insurance Company (Wausau) appeal from a $57,936.72 summary judgment in favor of the plaintiff, Victoria Acosta. That amount represents that portion of a final'workers compensation award determined to be due and owing to plaintiff. NBP and Wausau argue there is no basis for the summary judgment since the Workers Compensation Board (Board) determined that its previous award of $57,936.72 was void ab initio. We affirm.
The material facts are not in dispute and arise out of a workers compensation proceeding and a civil proceeding to enforce a workers compensation award. The workers compensation proceeding was originally a part of this case; however, the claimant voluntarily dismissed her appeal in that proceeding. The details of the workers compensation proceeding are important in addressing the issues raised in the civil proceeding to enforce the workers compensation award. The record on appeal consists of both proceedings.
Workers Compensation Proceedings
The claimant sought employment with NBP in January 1994. On her employment application, she gave her name as Victoria Acosta and provided a valid social security number for the same name. In spite of her production of a social security number, she answered “yes” to the following question on the application: “Are you prevented from lawfully becoming employed in this country because of VISA or immigration status?” On her 1-9 form which she filled out to send to the Immigration and Naturalization Service, she certified that she was a citizen of the United States. The claimant was hired and began working on January 31, 1994.
On September 8, 1995, the claimant was injured during the course of her employment. She filed a workers compensation action and was terminated for “unexcused absences” on the same day that her claim reached her employer. On March 19,1998, the claim of Acosta was considered and determined before the Division of Workers Compensation. Both claimant and the respondent were represented by counsel. All matters relative to the claim were resolved in an award to claimant. In findings of fact, Assistant Director Brad E. Avery noted:
“Respondent argues that claimant lied on her job application regarding her previous employment and that should mitigate claimant’s ability to be compensated for her injuiy. However, although the claimant did misrepresent that she had previously been employed (when in fact she had not), there is not evidence before the court that her lie had a material bearing on her injury or her percentage of disability. For that reason, her job application has no bearing on the court’s decision.”
The respondent appealed the award of $42,846.61, the amount of temporary partial disability compensation and permanent partial disability compensation due as of March 18, 1998, and the award of $57,153.39, the remaining balance to be paid at $326 per week or until further order of the director. In its appeal, the respondent claimed that claimant “has not proven that she is entitled to receive permanent partial general disability compensation in excess of her functional impairment.”
On February 2, 1999, the entire matter was heard before the Board. The issues identified by the Board were as follows:
“This is a claim for a September 8,1995 accident. After finding that respondent terminated claimant either because of her injuries or because she filed a workers compensation claim, the Assistant Director found that claimant was entitled to a 78.5 percent permanent partial general disability,
“Respondent and its insurance carrier contend the Assistant Director erred. First, they contend that claimant was fired because she violated the company’s attendance policy rather than because of her injuries or workers’ compensation claim. Second, if the Appeals Board finds that claimant is entitled to a permanent partial general disability that exceeds the functional impairment rating, the respondent and insurance carrier contend that claimant has failed to make a good faith effort to find appropriate employment and, therefore, claimant has failed to prove any wage loss for purposes of the permanent partial general disability formula.”
In its decision the Board noted that because of the average weekly wage stipulation, “the only issue on this appeal is the nature and extent of claimant’s injury and disability.” After a comprehensive analysis of claimant’s disability, the Board determined that
“[a]s of January 31, 1999, .43 weeks of temporary total and 177.29 weeks of permanent partial general disability compensation, both totaling 57,936.72, are due and owing, less any amounts previously paid. The remaining balance of $20,671.66 is ordered paid for 63.41 weeks at the rate of $326 per week until fully paid or further order of the Director.”
Neither the respondent nor the claimant appealed from the Board’s decision.
On February 4, 1999, in an attempt to comply with the provisions of K.S.A. 44-512 (a), a workers compensation statute whose purpose it is to aid workers in enforcing payment of past due awards, the claimant sent a demand to NBP for payment of that part of the award due, $57,936.72. There is no dispute that claimant complied with the statutory provisions of K.S.A. 44-512(a) and that respondent failed to make payment within 20 days of the demand under K.S.A. 44-512(b).
On February 22,1999, NBP and Wausau filed an application for review and modification of the final workers compensation award pursuant to K.S.A. 44-528. Along with review and modification, NBP and Wausau filed their motion to stay payment in which they acknowledge that their right to appeal said order will expire March 5,1999. No appeal was thereafter taken. NBP, joined by its workers compensation insurance carrier, Wausau, filed a motion to vacate the award pursuant to K.S.A. 44-528 because they did not know the true identity of the individual purporting to be Victoria Acosta and they have not been able to appropriately defend the case as to medical history, work history, and lawful employment status of that individual because of the identity problem, which included a motion for discovery.
A hearing was held on the NBP and Wausau motions on April 22, 1999. In an order dated April 28, 1999, the administrative law judge (ALJ) found she did not have jurisdiction under K.S.A. 44-528 to vacate the award and refused to stay the payments but did compel the appearance of the claimant for a deposition. NBP, Wausau, and the claimant appealed to the Board.
On November 9, 1999, the Board addressed the appeal by the parties from the decision of the ALJ inter alia that she had no jurisdiction to vacate the final award of $57,936.72. Citing K.S.A. 44-528(d), the Board stated that review and modification under K.S.A. 44-528 specifically limits the effective date for modifications due to a change in either the functional impairment or work disability but is otherwise silent. Thus, according to the Board “[ijmpliedly, the stautute[44-520,review and modification] does not limit the effective date of the changes due to fraud or serious misconduct.” Relying upon the above interpretation together with “a general power to set aside judgments obtained by fraud,” the Board concluded there was “a preliminary showing of fraud or serious misconduct which may render the initial award of benefits void.” Thus, for these reasons among others, the Board stayed pay ment of the $57,936.72 and remanded the case to the ALJ to address the remaining issues.
Upon remand, the ALJ made a finding of serious misconduct and fraud on the part of the claimant and further found pursuant to K.S.A. 44-528 that the respondent and its insurer were entitled to modification of the award entered by the Board order dated February 2, 1999: “Claimant’s case is dismissed and the award entered is void ab initio.” On appeal to the Board the decision of the ALJ was affirmed in part and reversed in part. The decision of the Board is contained in paragraph 7 of its conclusions of law:
“7. Because claimant refuses to testify regarding material and relevant facts, the award of benefits, which was obtained through either fraud or serious misconduct, should be set aside and voided ab initio. Claimant should not receive an award in this proceeding until such time as she is forthright and an award can be entered in a just amount based upon the facts.”
District Court Proceedings under K.S.A. 44-512a
While the second appeal of NBP and Wausau was pending before the Board, the claimant and plaintiff filed an action in the district court on August 18, 1999, to collect the past due compensation under the award pursuant to K.S.A. 44-512a(b). The statute provides that “[t]he employee may maintain an action in the district court of the county where the cause of action arose for the collection of such past due disability compensation and medical compensation, any civil penalties due under this section and reasonable attorney fees incurred in the connection with the action.” K.S.A. 44-512a(b).
All parties to the action moved for summary judgment. At the time, the appeal was still pending before the Board on the question of whether there was authority under the Kansas Workers Compensation Act to declare the Board’s previous award to Acosta void because of identity fraud. In response to motions for summary judgment, motions for stay, and related matters, the district court decided that it was not certain that it had jurisdiction to hear the pending motions because the underlying workers compensation case had not yet been decided. The court concluded that the fol lowing question must be determined by the appellate court before the court could act:
“Whether the parties to a workers compensation action may bring, and a district court has jurisdiction to hear, an action under K.S.A. 44-512a when, at the same time, a motion for review and modification, brought under K.S.A. 44-528, to modify the award upon which the K.S.A. 44-512a action is based is pending in the underlying workers compensation case?
“Until that issue is addressed, this Court is of the opinion that it does not have jurisdiction to hear the pending action and related motion.
“The rulings made by this Court herein are such that it certifies these rulings for interlocutory appeal pursuant to K.S.A. 60-2102(b) . . . .”
The Kansas Court of Appeals denied the motion for permission to take interlocutory appeal on June 20, 2000.
Thereafter, on September 22, 2000, after hearing arguments by counsel and after consideration of the authorities advanced by counsel and all pleadings filed, the district court determined:
“(1) Defendant Wausau Underwriter’s Insurance Company’s Motion to Dismiss with Prejudice is denied;
“(2) Defendant National Beef Packing, L. P.’s Motion for Summary Judgment is denied;
“(3) Plaintiff s (Claimant) Motion for Summary Judgment filed October 28,1999, is sustained and Plaintiff is granted judgment against the defendants in the amount of $57,936.72.
“(4) Plaintiff s request for reasonable attorney’s fees and for penalties against the defendants pursuant to K.S.A. 44-512a are denied.”
NBP and Wausau each took separate appeals to the Court of Appeals from the order of the district court. The claimant had also appealed to the Court of Appeals from the decision of the Board. The cases were consolidated. However, after consolidation, the claimant voluntarily dismissed her appeal of the Board’s decision, preferring instead to initiate further proceedings for review and modification under the Workers Compensation Act to obtain a new award now that she may legally work in the United States. This withdrawal and attempt to gain a new award does not malee the case moot. There remains a district court summary judgment in favor of claimant in the amount of $57,936.72.
The claimant’s voluntary dismissal of the appeal does have an effect on the issues raised in this proceeding. A large part of the claimant’s brief is taken up in an attempt to persuade the court that she did not actually commit fraud in the workers compensation proceeding. The claimant makes a strong case that the fact that she filed for benefits under a false name did not actually affect the proceedings. However, because the claimant dropped her appeal of the Board’s decision and because no other party appealed from this order of the Board, this court is without jurisdiction to review this legal finding by the Board.
We are called upon to determine whether the district court erred by enforcing the initial award of $57,936.72 to the claimant. The answer to this question depends to some extent on the effect of the subsequent Board order declaring its initial award of $57,936.72 void ab initio. Thus, our resolution of the question posed in this appeal necessarily involves our consideration of the validity of the Board’s order voiding its original award of $57,936.72 ab initio.
Workers Compensation Appeals Board Authority
Claimant contends that the Board was without authority to declare her initial award void ab initio on the basis of fraud. Claimant argues that the Workers Compensation Act contains no statutory authority for such a declaration to be made by the Board either independently or as part of a K.S.A. 44-528 review and modification proceeding.
The appellants chose not to appeal from the claimant’s original award. Instead, upon discovering she used a false name and social security number, they filed for a review and modification of the award pursuant to K.S.A. 44-528. The statute reads in pertinent part:
“(a) Any award or modification thereof agreed upon by the parties, except lump-sum settlements approved by the director or administrative law judge, whether the award provides for compensation in the future or whether it does not, may be reviewed by the administrative law judge for good cause shown upon the application of the employee, employer, dependent, insurance carrier or any other interested party. In connection with such review, the administrative law judge may appoint one or two health care providers to examine the employee and report to the administrative law judge. The administrative law judge shall hear all competent evidence offered and if the administrative law judge finds that the award has been obtained by fraud or undue influence, that the award was made without authority or as a result of serious misconduct, that the award is excessive or inadequate or that the functional impairment or work disability of tire employee has increased or diminished, the administrative law judge may modify such award, or reinstate a prior award, upon such terms as may be just, by increasing or diminishing the compensation subject to the limitations provided in the workers compensation act.
“(d) Any modification of an award under this section on the basis that the functional impairment or work disability of the employee has increased or diminished shall be effective as of the date that the increase or diminishment actually occurred, except that in no event shall the effective date of any such modification be more than six months prior to the date the application was made for review and modification under this section.”
We have held that the purpose of a review and modification hearing is to create a new award, and it should not be used as a means of attacking the validity of an award for payments already made. Instead, the workers compensation appeals procedure is the proper avenue for such a challenge. Ferrell v. Day & Zimmerman, Inc., 223 Kan. 421, 423, 573 P.2d 1065 (1978). This court held in Ferrell that each payment of a compensation award becomes a final judgment as it comes due and that these judgments cannot later be modified or dissolved by judicial fiat. Rather, any modification of a workers compensation award in a review and modification proceeding must act prospectively from the time a new award is entered and not retrospectively. 223 Kan. at 423.
The claimant points to Ferrell for the proposition that while the ALJ and the Board may have had the power to diminish her rights to future compensation, they did not have the power to void her award ab initio and, therefore, she is entitled to the amount due prior to the ALJ’s modification of the award. Initially the ALJ agreed with this position and held that she had no jurisdiction under K.S.A. 44-528 to declare the final award of the Board, one that had not been appealed by any party, void ab initio. However, after an appeal to the Board and a remand to the ALJ, the ALJ determined she had such authority.
The Board interpreted K.S.A. 44-528 to hold that the ALJ did have the power to declare the award void ab initio. Its justification for this position was based upon its interpretation of K.S.A. 44-528(d), which was added to K.S.A. 44-528 (Ensley) in 1987. L. 1987, ch. 187, sec. 11. K.S.A. 44-528(d) allows a modification on the basis that the functional impairment or work disability of the employee has increased or diminished to be effective retrospectively as of the date the increase or diminishment occurred, although not more than 6 months prior to the date the application for review and modification was made. In what may be characterized as a major leap, the Board then reasoned that because K.S.A. 44-528(d) provided a limitation to the effective date for modifications due to a change of functional impairment or work disability, it impliedly did not limit the effective date of changes due to fraud or serious misconduct. The interpretation is contrary to the expressed language used by the legislature and the legislative intent of K.S.A. 44-529(d).
K.S.A. 44-528(d) was proposed as an exception to the general rule announced in Ferrell, and its intent was to grant limited retroactivity in cases regarding a change in condition in order to protect the worker. See Commentary on H.B. No. 2186 by Robert B. Wareheim, John M. Ostrowsld, and Beth Regier Forester, Before the House Committee on Labor and Industry, February 9, 1987 (proposing the amendment which later became K.S.A. 44-528[d]). The amendment was not presented as a blanket overturning of the provisions of K.S.A. 44-528 relating to prospective modification and the rule expressed in Ferrell. Rather, the amendment granted only limited retroactivity to protect the worker. Had the legislature intended by this exception to allow a review and modification proceeding to have complete retroactivity, it would not have relied upon silence and implication but would have expressly provided for such an extreme departure. Legislative silence with regard to the effective date of changes due to fraud or serious misconduct should be construed to imply that the general rule regarding the prospective application of review and modification proceedings remains in effect rather than that the general rule is reversed in those instances.
K.S.A. 44-528 outlines the power of an ALJ when faced with a motion for review and modification based on fraud. K.S.A. 44- 528(a) authorizes the ALJ to modify the award or reinstate a prior award, upon such terms as may be just, by increasing or diminishing the compensation. The statute does not give the ALJ power to retrospectively declare the entire award void ab initio.
The appellants argue that if K.S.A. 44-528 does not provide the power to set aside the judgment, administrative tribunals have the inherent power to do so when an award has been obtained by fraud. In support of this contention, appellants cite 8 Larson’s Workers Compensation Law, § 131.05[l][a]. Larson writes that a court may reopen a settlement procured by fraud, stating: “This remedy may be based on either specific provisions of the compensation act or upon the general power of courts to set aside judgments obtained by fraud.” Larson then criticizes several Georgia cases which hold such settlements cannot be reopened by stating: “Surely it is a mockery of justice to admit that a legal system is powerless in the hands of any trickster who is clever enough to succeed in deceiving the court up to the point of obtaining a judgment.” 8 Larson’s Workers Compensation Law, § 131.05[1][a]. It should be noted, however, that while Larson urges the finding of an inherent right to reopen the award for fraud, he does not ascribe to the ALJ or the Board the power to declare an award void ab initio.
Further, notwithstanding Larson’s opinion regarding the inherent power of courts to set aside judgments procured by fraud, the fact remains the ALJ and the Board are both administrative bodies. “ ‘Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes, therefore any exercise of authority claimed by the agency must come from within the statutes. There is no general or common law power that can be exercised by an administrative agency.’ ” Legislative Coordinating Council v. Stanley, 264 Kan. 690, 706, 957 P.2d 379 (1998). Further, the Workers Compensation Act is substantial, complete, and exclusive, covering every phase of the right to compensation and of the procedure for obtaining it. See Jones v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996).
As noted above, the Workers Compensation Act provides an explicit procedure which allows an ALJ, on a motion for review and modification, to modify an award for fraud by increasing or diminishing the compensation. K.S.A. 44-528(a). Nothing in the statute allows the ALJ to declare the award void ab initio, and according to the general rule regarding review and modification, the modification operates only prospectively. See Ferrell, 223 Kan. at 423. Where there is a complete and legislated procedure, there is no room for the ALJ to invoke the “inherent power” of the tribunal to declare an award void ab initio for fraud.
It should be noted that the parties had the ability to challenge the award through direct appeal but did not avail themselves of this opportunity. Although there is no authority to void a final award ab initio, the provisions of K.S.A. 44-528 remain an important remedy for the employer. As we noted in Ferrell, a respondent or its insurance company can file a motion for review and modification at any time, regardless of whether it has evidence to support the motion, then let the motion lie while it attempts to gather evidence. 223 Kan. at 422. Moreover, K.S.A. 44-528(a) gives the ALJ the prospective power to modify an award by decreasing compensation to zero if necessary. Further, K.S.A. 44-5,120 establishes a procedure whereby the employer and its insurer may petition the Director of Workers Compensation to require the claimant to repay any amount the person received as benefits with interest, as well as a civil penalty. In the event the petition is unsuccessful, K.S.A. 44-5,121 allows the employer and its insurer, after exhaustion of administrative remedies under K.S.A. 44-5,120, to file a civil cause of action to recover the benefits paid.
We conclude that neither the ALJ nor the Board had the jurisdiction in a review and modification proceeding under K.S.A. 44-528 to vacate ab initio claimant’s previous award of $57,936.72.
District Court Enforcement
The appellants contend that because the award had been declared void by the ALJ by the time the district court held a hearing on whether to judicially enforce the amounts due under the award, the trial court erred in enforcing the award. The claimant contends that because the award was valid at the time she filed a motion to enforce it, and because the ALJ and the Board had no authority to declare the award void, the district court acted properly in enforcing the award.
K.S.A. 44-512a(a) provides that if compensation has been awarded under the Workers Compensation Act but not paid when due, a claimant may personally serve a written demand for payment on the employer or insurance carrier liable for payment. If payment is refused or is not made within 20 days, the employee may apply to die ALJ for a civil penalty. Further, under K.S.A. 44-512a(b), the claimant may maintain a civil action in the district court of the county where the cause arose for all past due compensation and any penalties. The right to an action under K.S.A. 44-512a occurs when an award becomes the final award of the Board. See Harper v. Coffey Grain Co., 192 Kan. 462, 466, 388 P.2d 607 (1964). An appeal of the award to the appellate courts does not stay the operation of the statute. 192 Kan. at 467. See K.S.A. 44-556 (stating that an appeal of an award to the Court of Appeals does not stay the payment of compensation due).
K.S.A. 44-512a is remedial in character and was intended to supplement existing remedies provided in the Workers Compensation Act. Under its remedy, the employer has the choice of protecting his or her vested rights by merely complying with the terms and requirements of the award until it is set aside, modified, paid, or redeemed, or to permit the worker to invoke the statute. Teague v. George, 188 Kan. 809, 815, 365 P.2d 1087 (1961). Prior to its amendment in 1974, the statute provided that if the employer did not comply with the payment, the entire award then became due, even if the award was still on appeal. Under such circumstances, the K.S.A. 44-512a proceeding superseded the award. Griffith v. State Highway Commission of Kansas, 203 Kan. 672, Syl. ¶ 5, 456 P.2d 21 (1969). Thus, although the employer might have a valid cause for appeal, his or her failure to pay the award as it became due extinguished his appeal rights as timely payment was a prerequisite to the continuance of an appeal. Griffith, 203 Kan. at 679-80. We stated in Griffith it “ 'is the declared public policy of the state that compensation awards shall be promptly paid, and [K.S.A. 44-512a] is the means selected by the Legislature to insure their enforcement and applies to all awards and judgments without the slightest qualification.’ ”
In 1974, K.S.A. 44-512a (Weeks) was amended to remove the provision accelerating payments. L. 1974, ch. 203, sec. 20. Failure to pay within 20 days of the demand made all past due compensation payable and also allowed the claimant to seek a civil penalty. L. 1974, ch. 203, sec. 20. However, we still held that in the case of payments past due that were not paid within 20 days of demand, the K.S.A. 44-512a proceeding superseded the original award. Kelly v. Phillips Petroleum Co., 222 Kan. 347, 357, 566 P.2d 10 (1977). Any party wishing to appeal to the appellate courts has to have made payments when due. See K.S.A. 44-556 (stating that a commencement of an action for review by the Court of Appeals does not stay the payment of compensation due).
In the case at hand, the Board awarded the claimant $57,936.72, due from the date of the accident. At that point, the claimant had a right to that sum. Appellants did not pay that sum and the claimant issued a demand letter pursuant to K.S.A. 44-512a. There is no dispute concerning the validity of the demand made. The 20 days provided for in the statute elapsed without payment from the appellants. Upon the elapse of that 20-day period, the past due amount payable to the plaintiff became immediately due and payable, and the claimant had the right to enforce this award in the district court. At that point, the K.S.A. 44-512a proceeding superseded the original award from the Board and made moot any proceedings with regard to that amount past due. As a result, the fact the award was later set aside on appeal and modification does not matter. The failure of the appellants to pay the amount due gave die claimant rights as to that amount from the expiration of the 20 days following the demand under K.S.A. 44-512a.
Appellants argue it would be unfair for the district court to enter judgment when it was clear the award was based on fraud. However, as to the amount on which the district court granted judgment, it no longer mattered that the original award was set aside. The failure of the appellants to pay made that amount a valid judgment of its own. As long as the award was not void ab initio, that is, as if it had never existed, the appellants were required to pay compensation due. As stated above, neither the ALJ or the Board had the power to declare the award void ab initio.
Appellants also argue the district court erred in awarding judgment because the claimant failed to produce herself for a deposition. According to the appellants, the court should have dismissed the case pursuant to K.S.A. 60-237(d), which provides that where a party fails to appear at a deposition the court may makes such orders as are just, including dismissal of the action.
K.S.A. 44-512a is a workers compensation statute and it provides for an action in the district court for civil enforcement. The questions of whether K.S.A. 60-237(d) applies to such an action and, if so, whether the district court should have dismissed plaintiff s enforcement action for her failure to appear for a deposition, need not be resolved in the opinion of this court. The sole question to be considered in the enforcement action was whether die appellants had failed to pay amounts past due within 20 days of a proper demand pursuant to K.S.A. 44-512a.
The appellants in this matter failed to pay compensation due under a valid order of the Board. The claimant properly sent a demand letter pursuant to K.S.A. 44-512a. Payment of the past due amount was not made within 20 days of service. The claimant then obtained a valid judgment for the amount past due enforceable by the district court irrespective of the fact the award was later set aside.
Appellants argue that the enforcement of the award will encourage fraud. This is unlikely in light of the ability of the employer and insurer to reclaim amounts paid with interest and penalties under K.S.A. 44-5,120 and K.S.A. 44-5,121. Such fraud is subject to criminal penalties under K.S.A. 44-5,125. Enforcement of the award encourages the employer and insurer to actually pay the award when it becomes due in order to retain their rights, in accordance with the declared public policy of the State of Kansas. See Griffith v. State Highway Commission of Kansas, 203 Kan. at 678.
In summary, the claimant obtained a total award $78,608.38, of which $57,936.72 was due when the award became final, and the appellants were obliged to pay while seeking any future appeal or review and modification. Appellants chose not to pay it and began proceedings to review and modify it. The claimant issued a demand letter as provided under K.S.A. 44-512a. Twenty days elapsed without payment by the appellants. The $57,936.72 then became a separate judgment which could no longer be affected by any modification or reversal of the original award. The only possible way in which the appellants could not be liable for the $57,936.72, once it became a separate judgment, is if the original award was found to be void ab initio. The ALJ. and later the Board did find the original award to be void ab initio, but lacked the statutory authority to do so. The extent of the authority of the ALJ and the Board was to prospectively modify or set aside the award, and neither of these could affect the validity of the claimant’s judgment of $57,936.72. As a result, the district court judge did not err in awarding judgment to the claimant for that amount.
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The opinion of the court was delivered by
Brazil, j.:
Kristen Wilt petitions this court for review of the Court of Appeals’ decision State v. Wilt, No. 84,248, an unpublished opinion filed July 20, 2001, which affirmed her conviction for aiding and abetting the sale of marijuana within 1,000 feet of school property.
The State charged Wilt with aiding and abetting the sale of marijuana within 1,000 feet of school property. The State’s evidence showed that a confidential informant for the Pratt County Sheriff s Department bought drugs from Justin Roberts in a shelter house at a park in Pratt. According to Jeff Ward, a deputy with the sheriff s department, Wilt drove up to where the informant was standing. Roberts was a passenger in the car. Wilt parked in the parking lot by the shelter house and Roberts got out of the car and approached the informant. Wilt followed a short time later. Ward estimated Wilt, Roberts, and the informant stood in the shelter house for approximately 5 minutes and then Wilt and Roberts drove off. Later, the informant produced for Ward the marijuana sold to her by Roberts.
The informant testified that Roberts sold her the marijuana and that both Roberts and Wilt were present at the time the money was exchanged for drugs.
The State presented the testimony of Dennis Lewis, a surveyor who testified the shelter house was 449.78 feet from ball diamonds in the park. Bruce Penkall, the recreation director for the city, testified that the ball diamonds were used by the high school for softball games and practices. Penkall described the arrangement between the city and school:
“Q. And is there any kind of an arrangement between the City and U.S.D. #382, Pratt High School for use of those diamonds?”
“A. The arrangement is just verbal between both groups. I mean, we talk about they can use our facilities and we can use theirs.”
Penkall confirmed the ball diamonds were well under 1,000 feet from the shelter house.
Wilt testified in her own defense. Wilt told the jury she did not believe Roberts was selling drugs that day and that she did not know about the sale of marijuana to the informant until a week after the sale.
A jury convicted Wilt of one count of aiding and abetting the sale of marijuana within 1,000 feet of school property. The sentencing court granted Wilt’s motion for a downward durational and dispositional departure, and sentenced Wilt to 36 months of probation, with an underlying prison term of 15 months. Wilt appealed, and the Court of Appeals affirmed her conviction. This court granted Wilt’s timely filed petition for review.
Wilt argues the State presented insufficient evidence to prove the sale of marijuana occurred within 1,000 feet of a school. Wilt argues the ball diamonds in the city park do not constitute school property. The standard of review 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. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000).
The issue in this case is whether the high school’s use of the ball diamonds for softball games and practices fits the definition of “school property.” See K.S.A. 2001 Supp. 65-4163(b). Wilt argues in her petition for review that there was no evidence the property was “school property.” K.S.A. 2001 Supp. 65-4163 provides:
“(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to sell, offer for sale or have in such person’s possession with the intent to sell, deliver or distribute; cultivate; prescribe; administer; defiver; distribute; dispense or compound:
(3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-4105, and amendments thereto or designated in subsection (g) of K.S.A. 65-4107 and amendments thereto or designated in subsection (g) of K.S.A. 65-4109 and amendments thereto;
“Except as provided in subsection (b), any person who violates this subsection shall be guilty of a drug severity level 3 felony.
“(b) Notwithstanding any other provision of law, upon conviction of any person pursuant to subsection (a) for an offense in which the substances involved were possessed with intent to sell, sold or offered for sale in or on, or within 1,000 feet of any school property upon which is located a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12 and such person is 18 or more years of age, such person shall be guilty of a drug severity level 2 felony.” (Emphasis added.)
There is a presumption that the legislature does not intend to enact useless or meaningless legislation. State v. Alford, 257 Kan. 830, 837, 896 P.2d 1059 (1995). Further, criminal statutes must be strictly construed in favor of the accused. State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
The Court of Appeals in State v. Prosper, 21 Kan. App. 2d 956, 962, 910 P.2d 859, aff'd as modified 260 Kan. 743, 926 P.2d 231 (1996), construed a statute substantially similar to K.S.A. 2001 Supp. 65-4163, which also contained the phrase “school property,” and concluded there was no outright ownership requirement:
“K.S.A. 1993 Supp. 65-4127a(d) requires that the structure or property be used by a unified school district or accredited nonpublic school. The statute contains no ownership requirement. Had the legislature intended to adopt an ownership requirement, it could easily have done so. It is not the function of the court to rewrite a statute under the guise of interpretation. [Citation omitted.]
“Moreover, the legislature intended for the statute to protect children from the negative effects of drug use and drug dealing. [Citation omitted.] Children are exposed to those negative influences when drug deals are conducted near schools regardless of whether the school buildings are owned or leased by school districts.” 21 Kan. App. 2d at 963.
This court expressly approved of that analysis on review. State v. Prosper, 260 Kan. 743, 747, 926 P.2d 231 (1996). It is important to note, however, that the school property in that case was leased by the unified school district. 21 Kan. App. 2d at 962.
K.S.A. 2001 Supp. 65-4163(b) clearly requires that the structure used for school purposes be located upon school property. The phrase “school property” implies something more specific than merely “property.” Had the legislature intended otherwise it would have used the term “property.” See Commonwealth v. Klusman, 46 Mass. App. 919, 920, 708 N.E.2d 115 (1999) (Massachusetts law defining the crime of distributing marijuana within 1000 feet of a school not held to “require that ‘the real property comprising a . . . school’ be owned by the school. Nothing about this phrase suggests permanent ownership.”). “School property,” as it is used in K.S.A. 2001 Supp. 65-4163, requires that the unified school district or nonpublic school have some legal interest in the property upon which the structure is located. As the Court of Appeals held in Prosper, the legal interest can be something less than outright ownership, i.e., a lease. But the property must be something more than a permissive right to use the property in order to rise to the level of “school property.”
Cases from other states interpreting similar statutory language with a school ownership requirement are collected in Annot., Validity, Construction, and Application of State Statutes Prohibiting Sale or Possession of Controlled Substances within Specified Distance of Schools, 27 A.L.R.5th 593, pp. 667-68 (1995). The court in State v. Belnavis, 311 N.J. Super. 195, 709 A.2d 805 (1998), reversed a conviction for the possession of drugs with the intent to distribute within 1,000 feet of school property. The incident in Belnavis occurred in a parking lot near an “athletic field and facilities owned by the City of New Brunswick and used' by the New Brunswick Board of Education for school activities.” 311 N.J. Super. at 197. The Belnavis court described the agreement between the city and the school as a “relationship,” not a lease. The New Jersey statute required, in part, a finding that the crime be committed on any “school property used for school purposes which is owned by or leased to any elementary or secondary school or school board.” (Emphasis added.) 311 N.J. Super. at 198. The court found the athletic field did not meet the statutory requirements because there was no lease agreement and, therefore, reversed the conviction. 311 N.J. Super. at 199-200.
Similarly, we reverse the conviction in the present case because the State failed to establish that the drugs were sold within 1,000 feet of school property. While the Kansas statute does not contain the “owned by or leased to” language found in the New Jersey statute, we find the phrase “school property” to have an equivalent meaning. The State presented sufficient evidence to meet its burden of proof as to the sale of marijuana. “Where a defendant has been convicted of the greater offense but evidence supports only a lesser included offense, the case must be remanded to resentence tire defendant for conviction of the lesser included offense.” State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993).
Last, Wilt argues the prosecutor committed misconduct by violating the trial court’s motion in limine. Wilt complains of the following comment from the informant’s testimony:
“Q. Olcay. Who did you discuss the other drug dealings with?
“A. Justin and Kristen.
“Q. And what were those other drug dealings?
“A. About they had gotten in trouble a month or two before for acid and— (interrupted)”
At this point, an objection from Wilt’s attorney was sustained.
With respect to the informant’s comment that Wilt had “gotten in trouble a month or two before for acid,” it cannot be said tire State solicited the improper testimony. The State’s question asked the informant to say whether she had discussed further drug dealing with Wilt and Roberts. While this may be interpreted to refer to prior drug dealing, the prosecutor made his question clear immediately following the sustained objection when the prosecutor asked whether the informant discussed “obtaining other drugs from Mr. Roberts or Mrs. Wilt.” Thus, the prosecutor’s question involved future drug dealing — a permissible subject because such evidence would support the State’s aiding and abetting theory by showing how Wilt was involved in Robert’s drug selling business. Further, a jury is presumed to disregard evidence to which an objection is sustained. State v. Rice, 261 Kan. 567, 592-93, 932 P.2d 981 (1997).
Later, at the beginning of the prosecutor’s cross-examination of Wilt, the following exchange occurred:
“Q. Thirty days prior to July 2nd, Justin was picked up for possession of LSD, wasn’t he?
“A. Yes.
“Q. And were you arrested at the same time for possession of LSD?
“MR. JOHNSON: Directly in violation of the Court’s Order.
“THE COURT: It is. Ladies and Gentlemen, disregard Mr. Black’s last question and the answer. Mr. Black, if you violate it again I’ll declare a mistrial. You may continue with your examination.”
The prosecutor’s asking Wilt to tell the jury whether she had been arrested for possession of LSD was clearly improper. Before the State began presenting its evidence, and outside the presence of the jury, the trial court granted Wilt’s motion in limine with the following specific instruction to the prosecutor:
“Mr. Black, you may ask the Court to release you from that motion before you close your case in chief, depending upon tire tenor of questioning that may be offered by Mr. Johnston and if the Court denies it then and they offer evidence on behalf of the defense you may ask the Court to be released from it, depending upon die evidence that they present in their case in chief. But the Court would sustain the motion that at this point in time evidence of prior convictions or wrongdoings and the prejudicial effect of such matters would outweigh their probative value on the basis of the way the Court understands the case at this point in time. But we’ll probably revisit that issue at a later time.”
Thus, the prosecutor had no doubt the question was improper. Three factors are relevant when determining whether prosecutorial misconduct requires a new trial: (1) whether the misconduct was so gross and flagrant as to deny the accused a fair trial, (2) whether the remarks show ill will on tire prosecutor’s part, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that it can be said that the prejudicial remarks of the prosecutor were likely to have little weight in the minds of the jurors. State v. Heath, 264 Kan. 557, 583, 957 P.2d 449 (1998).
The prosecutor’s conduct was not so gross and flagrant to deny Wilt a fair trial. Wilt immediately objected to the question, and the objection was sustained. Further, the trial court admonished the jury to disregard the question. This court has held that a prosecutor’s remarks that are objected to, followed by an admonition to disregard the remarks does not require a reversal unless the remarks are so prejudicial as to be incurable. See State v. Edwards, 264 Kan. 177, 196, 955 P.2d 1276 (1998) (“In fact, regarding improper comments by the prosecutor, we have held that where the jury has been instructed to disregard the remarks, there is no basis for reversal unless the remarks were so prejudicial as to be incurable.”) See also State v. Foster, 259 Kan. 198, 211, 910 P.2d 848 (1996) (applying the rule to a prosecutor s improper cross-examination of the defendant).
Whether the record shows ill will on the part of the prosecutor is a more difficult question. The prosecutor s question obviously disregarded the trial court’s ruling on Wilt’s motion in limine; however, the prosecutor did not continue to ask about improper matters following the objection. A one-line question in an 84-page trial .transcript cannot amount to ill will.
Last, the question did not change the outcome of the trial. The question at trial involved whether Wilt knew Roberts was in the business of selling drugs. That Roberts actually sold marijuana to the informant was beyond dispute; the State used an aiding and abetting theory to link Wilt to the crime. Wilt admitted in her cross-examination that Roberts had been previously arrested for the possession of drugs with the intent to sell:
“Q. But [Roberts] was arrested with enough LSD on him to be convicted of possession with intent to sell, right?
“A. Yes, because he was convicted.
“Q. And he also had marijuana on him at the time, right?
“A. Yes
“Q. So, at least thirty days prior to July 2nd, you knew [Roberts] was still in possession of drugs because he was arrested from your car, he was riding with you and you were driving it, right?
“A. Yes.”
Wilt failed to object to these questions.
There was substantial evidence Wilt knew Roberts was dealing drugs; therefore, we can say beyond a reasonable doubt that the prosecutor’s improper question regarding Wilt’s arrest did not change the outcome of the trial. Wilt’s argument fails.
Wilt’s conviction for the sale of marijuana within 1,000 feet of school property is reversed, and the case is remanded to the district court with directions to resentence Wilt for the sale of marijuana.
Reversed and remanded.
Davis, J., not participating.
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The opinion of the court was delivered by
Larson, J.:
The State of Kansas appeals from the trial court’s dismissal of capital-murder charges against Demetrius Hargrove on the grounds that his speedy trial rights under the Agreement on Detainers Act (Agreement), K.S.A. 22-4401 et seq., had been violated. The State’s appeal contends the trial court erred: (1) when it applied the Agreement to the present case, and (2) by abusing its discretion in finding that more than 120 days were chargeable to the State, pursuant to the speedy trial provision in Article IV of the Agreement. We answer the first issue and do not reach the second.
Factual background and proceedings
The ultimate questions in this appeal relate to the proceedings after charges were filed but, based on evidence presented at the preliminary hearing, we first set forth the facts which were developed to substantiate the charges in this case.
In early 1998, Hargrove and Christopher Trotter were selling drugs. One of their regular customers, who also sold drugs on their behalf, was Elmer Berg. Over time, Berg accumulated a debt to Hargrove in the amount of $1,500. Hargrove told Trotter at one point that he would no longer sell cocaine to Berg.
On February 19,1998, Hargrove advised Trotter he was coming over to get some cocaine to sell. Hargrove arrived at Trotter’s residence, and Berg stopped behind him in a separate car. With Berg was his sister, Misty Castor. Because Trotter did not have scales at his house, Trotter and Hargrove went to go to Hargrove’s house to divide and weigh the cocaine.
When Trotter entered Hargrove’s car, he asked Hargrove why Berg was following them. Hargrove stated he was going to sell cocaine to Berg. Trotter reminded Hargrove of his prior statements that he was no longer going to sell cocaine to Berg due to Berg’s failure to pay the owing drug debt. Hargrove looked at Trotter, then stated that he was going to “knock” Berg, which means to kill him.
Hargrove drove to Coronado Park and then stopped. Berg stopped behind him. Hargrove then reached under the seat of his car and pulled out a .38 caliber revolver. He walked to Berg’s car. Trotter heard four gun shots and a female say, “No.” Hargrove returned to his car. En route to Trotter’s home, Hargrove threw the gun down a sewer drain.
The police later discovered the dead bodies of Berg and Castor in the vehicle, Berg having been shot twice in the chest and head, and Castor having been shot twice in the neck and back. The police investigation which ensued ultimately resulted in the filing of charges.
On February 11, 1999, Hargrove was charged with two counts of first-degree murder and one count of criminal possession of a firearm. On February 12, 1999, the Wyandotte County Sheriffs office sent a request for detainer to the Correction Corporation of America in Leavenworth, Kansas, a federal holding facility where Hargrove was awaiting trial on federal kidnapping charges. The document stated, in pertinent part:
“Enclosed is our warrant for [Demetrius Hargrove] who is presently in your custody. Please lodge a detainer on subject in our favor and notify this office when he is available for pick-up.
“We will extradite. Should subject refuse to waive extradition, contact this office by phone.”
It is undisputed that the State’s prosecutors did not know of the filing of this document. On August 17, 1999, Hargrove was sentenced on a federal kidnapping conviction to 35 years’ imprisonment. Eight days later, the State petitioned the Wyandotte County District Court for a writ of habeas corpus ad prosequendum, and on the same day the writ was granted. In granting the writ, the court ordered:
“It is therefore considered and ordered that a Writ of Habeas Corpus Ad Prosequendum issue out of and under the Seal of [this court] . . . directed to said U.S. Marshall to release the body of said Demetrius Hargrove, to the Wyandotte County Sheriff s Department commanding him to produce the body of [Hargrove] ... at the criminal docket ... on the 14th day of September, 1999.”
On September 10, 1999, Hargrove made his first appearance in Wyandotte County. On November 22, 1999, the State amended the charges, dropping the first-degree murder charges and adding one count of capital murder in violation of K.S.A. 21-3439. At this point, Hargrove’s counsel was permitted to withdraw and the Kansas Death Penalty Defense Unit was appointed. Numerous motions usual in a death penalty cases were filed and continuances granted at the request of both parties. Hargrove was bound over following a preliminary hearing on March 20, 2000. On May 25, 2000, the trial court found the speedy trial provisions of K.S.A. 22-3402 did not apply in this case because Hargrove was not being held in custody “solely” on the charges herein as the result of his kidnapping sentence in the United States District Court, District of Kansas.
On October 13, 2000, a copy of the detainer was faxed from the United State Marshals Service to defense counsel. On October 18, 2000, Hargrove moved to dismiss the charges against him for the State’s failure to comply with the Agreement, K.S.A. 22-4401. The motion was heard on October 24, 2000.
Hargrove argued that his right to a speedy trial under the Agreement was violated in that he had spent approximately 405 days in the custody of the State of Kansas, which was well beyond the 120- day limit. The State responded that it was not its intent to use a detainer or the Agreement to gain custody of Hargrove, that K.S.A. 22-4401 did not apply because Hargrove was not serving a sentence at the time the detainer was lodged, and that even if die 120-day limit did apply major portions of die delay time was chargeable to Hargrove.
Hargrove contended that he should not be penalized for making motions, and that the court often left his motions pending for an excessive amount of time. He argued in die alternative that even if a certain amount of time was charged to him, the State had still exceeded its 120-time limit. He also contended that the statute does not require an individual to be serving a sentence at the time a detainer is lodged, but rather at the time the individual is transferred.
The trial court found in Hargrove’s favor and dismissed the charges with prejudice. The court noted that up until its discovery, “everyone involved in the case . . . was under the assumption that there was no detainer filed.” The court also noted that, although there was no bad faith involved, the defense counsel had been told at “every stage of the way ... no detainer existed.” The court found that Hargrove had consistently been concerned about his right to a speedy trial, and the court found “no fault with the efforts of the defendant in this case to protect his right to a speedy trial.” In dismissing the charges, the court concluded:
“It gives me no pleasure or joy to reach the conclusions that I have and every tortured scenario that I have been able to — to predicate has fallen simply because there’s no basis in law for it. . . . There’s never been any juncture where the defendant has not been concerned about his right to a speedy trial too. He never waived or gave up those rights. You can’t waive or give up a right that you didn’t even know you had.”
The State appeals the court’s dismissal, raising the two issues previously set forth.
Analysis
The State first argues that the trial court erred by applying the Agreement to the present case. The State contends the provisions of the Agreement do not and never were intended to apply to persons being detained for trial who are not serving prison sentences. Whether the Agreement applies under tírese facts is a question of law subject to our unlimited review. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
We have numerous discussions in Kansas cases relating to the Agreement, see, for example, State v. Robbins, 272 Kan. 158, 163-65, 32 P.3d 171 (2001); State v. Rodriguez, 254 Kan. 768, 771-75, 869 P.2d 631 (1994); State v. White, 234 Kan. 340, 343-44, 673 P.2d 1106 (1983); State v. Clark, 222 Kan. 65, Syl. ¶¶ 1, 2, 3, and 4, 563 P.2d 1028 (1977), but we have not previously considered whether the Agreement applies to an individual who is merely a pretrial detainee in another jurisdiction and has not been convicted of any crime nor serving a term of imprisonment.
Highly summarized, if the Agreement applies, Article III requires a prisoner to be brought to trial within 180 days where the prisoner has requested final disposition of a complaint, and Article IV requires a trial to be commenced within 120 days if the prisoner is returned pursuant to a request for temporary custody where the charges are pending. Robbins, 272 Kan. at 164.
The specific portion of the Agreement on which this case turns is K.S.A. 22-4401, Art. IV(a), which states:
“The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against ivhom, he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with article V (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of tire state in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request.” (Emphasis added.)
The legislative sanction for failure to comply with the 120-day time limit is dismissal of the charges with prejudice. Also, the detainer becomes without effect. K.S.A. 22-4401, Art. V(c).
In support of its assertion that a defendant must be serving a sentence at the time the detainer is lodged before the terms of the Agreement apply, the State cites United States v. Mauro, 436 U.S. 340, 56 L. Ed. 2d 329, 98 S. Ct. 1834 (1978); United States v. Reed, 620 F. 2d 709 (9th Cir. 1980); State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984); State v. Leisure, 838 S.W.2d 49 (Mo. App. 1992); People v. Carter, 193 Ill. App. 3d 353, 549 N.E.2d 763 (1989); Dorsey v. State, 490 N.E.2d 260 (Ind. 1986).
In Mauro, the United States Supreme Court combined and considered two cases concerning the Agreement. Highly simplified, in both cases the defendants were transferred pursuant to writs of habeas corpus ad prosequendum,. But, in one of the cases, the writ was preceded by a detainer delivered to the sending state. The Court held the situations in the two cases differed and ruled that a writ of habeas corpus ad prosequendum by itself does not invoke the requirements of the Agreement. 436 U.S. at 357-61.
The State asks us to look to the Mauro Court’s definition of “detainer” and the adoption of that definition by several other courts. See United State v. Hart, 933 F.2d 80 (1st Cir. 1991); United States v. Muhammad, 948 F.2d 1449 (6th Cir. 1991), cert. denied 502 U.S. 1119 (1992); United States v. Trammel, 813 F.2d 946 (7th Cir. 1987); United States v. Saffeels, 982 F.2d 1199 (8th Cir.), cert. granted, judgment vacated, and case remanded 510 U.S. 801 (1993). In attempting to decide whether a writ of habeas corpus ad prosequendum was a detainer, the Court stated:
“The Agreement itself contains no definition of the word ‘detainer.’ The House and Senate Reports, however, explain that ‘[a] detainer is & notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.’ H.R. Rep. No. 91-1018, p. 2 (1970); S. Rep. No. 91-1356, p. 2 (1970).” (Emphasis added.) 436 U.S. at 359.
The State relies on the “in which a prisoner is serving a sentence” wording to conclude that Hargrove was not serving a sentence when the initial “hold” was filed, which, therefore, does not institute the operation of the Agreement. And, because a writ of habeas corpus ad prosequendum is not a detainer unless a “written request for temporary custody” had been filed, that the Agreement has no effect in our case.
In Reed, a notation “Hold for U.S. Marshals” was not deemed a detainer because it was made by a State officer, but more applicable to the State’s argument of not invoking the Agreement, the opinion states:
“Second, appellant was not serving a ‘term of imprisonment’ within the meaning of the statute. Appellant was in custody awaiting trial on state and federal charges and awaiting revocation of his parole arising out of an earlier state charge. The purpose of the Interstate Agreement on Detainers Act is ‘to minimize the adverse impact of a foreign prosecution on rehabilitative programs of the confining jurisdiction.’ United States v. Milhollan, 599 F.2d 518, 528 (3d Cir. 1979), cert. denied, 444 U.S. 909, 100 S. Ct. 221, 62 L. Ed. 2d 144 (1979), quoting, U.S. ex rel. Esola v. Groomes, 520 F.2d 830, 836-37 (3d Cir. 1975). We agree with the decisions of other circuits that neither a pretrial detainee nor a parole violator has a sufficient interest in the rehabilitation programs of his confining institution to justify invocation of the Act. United States v. Milhollan, supra (pretrial detainee); United States v. Harris, 566 F.2d 610 (8th Cir. 1977) (pretrial detainee); United States v. Roberts, 548 F.2d 665 (6th Cir. 1977), cert. denied, 431 U.S. 931, 97 S. Ct. 2636, 53 L. Ed. 2d 246 (1977) (pretrial detainee); United States v. Dobson, 585 F.2d 55 (3d Cir. 1978), cert. denied, 439 U.S. 899, 99 S. Ct. 264, 58 L. Ed. 2d 247 (1978) (parole violator).” 620 F.2d at 711-12.
Reynolds’ holding relates to not placing on the receiving State the burden of requiring a sending State to promptly comply with the Agreement’s provisions, see 218 Neb. at 761, and we do not deem it to be in any manner applicable to our case.
The issue and result in Leisure appears to be consistent with the State’s arguments, as it states: “Agreement on Detainers did not apply to a pretrial detainee, nor when appearance in state court was obtained throughout writ of habeas corpus ad prosequendum rather than detainer.” 838 S.W.2d 49, Syl. ¶ 3. In Carter, detention on a federal parole violation was not a “term of imprisonment” and therefore, the speedy trial term of Agreement on Detainers Act did not apply. See 193 Ill. App. 3d 353, 549 N.E.2d 763, Syl. ¶¶ 1-4. In Dorsey, it was held that a “[defendant who was being detained by Michigan authorities while awaiting trial and was also serving a sentence at the county jail was not qualified as an intended beneficiaiy of the Interstate Detainers Agreement, [citation omitted] which applies to persons already convicted and serving time in prison.” 490 N.E.2d 260, Syl. ¶ 1.
Hargrove relies on our decision in Clark, 222 Kan. 65. There, we refused to narrowly define a detainer under the Agreement, stating: “A detainer is a hold order or informal demand by one exercising public authority for the possession of a person already in lawful custody.” 222 Kan. at 67. Under this definition, a demand need only be made on the public authority who has “lawful custody” of the prisoner. However, as in Mauro, the facts of Clark are distinguishable in that Clark was clearly incarcerated at the time the detainer was filed. Clark did not involve a pretrial detainee.
The authoritative value of Clark in regards to its finding that a temporary request for custody by itself invokes the Agreement is questionable in light of subsequent decisions of the United States Supreme Court, including Mauro and Cuyler v. Adams, 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1981). In Cuyler, the Agreement was found to be an interstate compact, “the interpretation of which presents a question of federal law.” 449 U.S. at 442. We are bound by decisions of the United States Supreme Court concerning questions of federal law. Lawrence Paper Co. v. Gomez, 257 Kan. 932, 934, 897 P.2d 134, cert. denied 516 U.S. 869 (1995) (quoting Ritchie v. Johnson, 158 Kan. 103, 117, 144 P.2d 925 [1944]).
Hargrove’s reliance on several decisions from other state courts, including Felix v. United States, 508 A.2d 101 (D.C. 1986), People v. Zetsche, 188 Cal. App. 3d 917, 233 Cal. Rptr. 720 (1987), and State v. Helmstetter, 914 P.2d 474 (Colo. App. 1995), are helpful to his arguments but different factually and in the arguments made.
In Felix, it was held that once a person has been convicted and has begun serving that sentence in the sending jurisdiction, such person’s status is distinguishable from that of a pretrial detainee, and such person is entitled to the speedy trial protection of the Agreement. 508 A.2d at 105-08. The facts of Felix differ from ours because there a request was made by Felix for disposition of the charges against him while we have no such request by Hargrove.
The District of Columbia Court of Appeals in the Felix opinion recognized that it had in Christian v. United States, 394 A.2d 1 (D.C. 1978), cert. denied 442 U.S. 944 (1979), held that the Act does not protect pretrial detainees but reasoned that Felix’s status changed once he was convicted and made the request. There is language in the Christian opinion, which Felix distinguishes, that is actually more helpful to the State’s contentions here. Christian states:
“The Agreement was enacted to cure the disadvantages of the detainer system inuring to sentenced prisoners who had entered the life of the institution to which they had been committed. There is nothing in the legislative history or in the Agreement itself to indicate that its provisions were intended to apply to persons who were not involved in rehabilitative programs. Article IV(e) was designed to avoid the shuttling back and forth between jurisdictions and the resulting disruptive effect such transfers would have on a consistent treatment program and to promote the speedy disposition of outstanding charges upon which the detainers were based. For these reasons, courts which have addressed the issue have recognized that a prisoner who is being temporarily incarcerated pending disposition of charges is not entitled to invoke the protections of the Agreement. United States v. Harris, 566 F.2d 610 (8th Cir. 1977); United States v. Roberts, 548 F.2d 665 (6th Cir.), cert. denied 431 U.S. 920, 97 S. Ct. 2636, 53 L. Ed. 2d 246 (1977); United States v. Evans, 423 F. Supp. 528 (S.D.N.Y. 1976), aff'd, 556 F.2d 561 (2d Cir. 1977); Cresong v. Nevil, 51 A.D. 2d 1096, 381 N.Y.S. 2d 355 (1976); Seymour v. State, 21 Ariz. App. 12, 515 P.2d 39 (1973); Davidson v. State, 18 Md. App. 61, 305 A.2d 474 (1973). In Roberts, the court stated:
“We conclude that the Agreement is only concerned that a sentenced prisoner who has entered into the life of the institution to which he has been committed for a term of imprisonment not have programs of treatment and rehabilitation obstructed by numerous absences in connection with successive proceedings related to pending charges in another jurisdiction. There is no indication in the language of the Agreement or in the legislative history that its provisions were intended to apply to persons being detained for trial who are not serving prison sentences. [United States v. Roberts, supra at 670-71.]’
This reasoning is sound. If a prisoner is in custody to await trial, and is not involved in special institutional treatment or rehabilitative programs geared toward his eventual release into society, the potential for abuse of the detainer system is not present.” 394 A.2d at 40.
It appears the cases which Felix brings before us, Christian, Roberts, et al., provide much more support to the State’s position than to Hargrove.
Zetsche does involve a prisoner who was first a pretrial detainee (not entitled to any protection under the Agreement) but was later granted protection under the Agreement but found to have entered a plea within the Article IV time period. See 188 Ca. App. 3d at 924-26.
Helmstetter is the strongest case cited by Hargrove. There, the Colorado Supreme Court upheld the trial court’s dismissal of charges against the defendant based on a violation of the anti-shuttling provisions of Article IV(e). 914 P.2d at 477-78. However, the State did not argue either at the trial level or on appeal that the detainer filed prior to pronouncement of sentence did not fall within the purview of the Agreement. The issue before us, as in Felix, was not considered by the court in finding the Agreement to be applicable and upholding the dismissal of charges.
Our research reveals one other federal circuit court and one additional state supreme court that have addressed the issue we face. In United States v. Currier, 836 F.2d 11 (1st Cir. 1987), the defendant was in state custody while awaiting sentencing when, on May 9, 1986, a document purporting to be a detainer was filed against him by federal authorities. On May 16, and July 11, 1986, the defendant appeared in federal court pursuant to writs of habeas corpus ad prosequendum. Defendant was sentenced and began serving his prison sentence for the state charges on June 18, 1986. He was subsequently convicted of the federal charges, and he appealed his convictions claiming that his rights under the Interstate Agreement on Detainers Act, Art. IV(e), 18 App. U.S.C. § 1 et seq. (1982) had been violated. The First Circuit Court of Appeals refused to find that defendant’s failure to raise the issue until after he was convicted constituted a valid waiver, but the court found that because the detainer was filed prior to sentencing it did not invoke the provisions of the Agreement by stating: “We conclude, therefore, that the first "detainer’ [the May, 9, 1986 detainer] did not trigger the prohibition of Article IV(e) because when the document issued in May, appellant had not yet begun serving his state sentence.” (Emphasis added.) 836 F.2d at 16. Application of this decision to our facts would require that we find the February 12, 1999, “detainer” did not trigger the protection of the Agreement.
In State v. Herrick, 686 A.2d 602 (Me. 1996), the Maine Supreme Court considered whether a detainer filed prior to sentencing triggered the protection of the Agreement after sentencing or whether a new detainer must be filed. A detainer was filed against Herrick in December 1994 by Maine, while he was being held on a bond violation in Wisconsin. Herrick was sentenced for the Wisconsin violation on February 8, 1995. On February 15, 1995, Herrick sent a letter to officials in Maine attempting to invoke the 180-day speedy trial provision under Article III of the Agreement. A second detainer was filed by Maine on May 4, 1995, and on May 23, 1995, Maine authorities received his February 15th letter. Herrick appealed his conviction, arguing that the detainer filed in December became a detainer under the Agreement once he began serving his sentence. The Supreme Court rejected his argument and held as follows:
“The letter sent by [Maine authorities] in December 1994 was not a ‘detainer’ for the purposes of the [Agreement] because Herrick was not yet serving a prison sentence. Herrick’s attempts to invoke his rights under the [Agreement] prior to May 1995 did not trigger the 180-day time limit contained in Article III because there was no effective detainer lodged against him at that time. Once an effective detainer was lodged against Herrick and he invoked his rights under the [Agreement], he was brought to trial within 180 days.” (Emphasis added.) 686 A.2d at 604.
One of the purposes of the Agreement, stated in Article I, and discussed by ibis court in State v. Rodriguez, 254 Kan. 768, 771, 869 P.2d 631 (1994), is “to ‘encourage the expeditious and orderly disposition of such charges’ because outstanding detainers ‘produce uncertainties which obstruct programs of prisoner treatment and rehabilitation.’ ” If an individual, such as Hargrove, is not serving a sentence at the time the detainer is filed, he has no vested interest in the programs of treatment and rehabilitation available to prisoners. If a detainer is filed at that time, no credible argument can be made that it comes within the ambit of the Agreement.
Application of all of the case law we have previously cited produces the following holdings in this case. Pretrial detainees are not under the protection of the Agreement. A detainer filed prior to sentencing is not one that effectively invokes the provisions of the Agreement. Once sentencing and service of that sentence occurs, then the provisions of the Agreement may become effective and can be invoked.
In our present case, the detainer filed against Hargrove was filed prior to sentencing. Therefore, it was ineffective under the Agreement and it did not invoke the protection of the Agreement. The writ of habeas corpus ad prosequendum subsequently used by the State, under the Mauro standard and the numerous other cases cited, was issued as one that was not preceded by a detainer under the Agreement. The writ of habeas corpus ad prosequendum, therefore, did not trigger the provisions of the Agreement either. The Agreement was not invoiced under the facts of our case.
Hargrove contends in the alternative that the initial filing should be immediately transformed into a detainer under the Agreement once sentencing occurs. Hargrove fails to recognize this would work an unnecessaiy hardship on a state which files detainers to have to constantly check on the status of all detained individuals. We reject this argument.
We also reject Hargrove’s suggestion that adopting the State’s arguments would prohibit law enforcement agencies from ever filing a detainer against individuals in custody who had not yet been sentenced. The hold or detainer requested against a pretrial detainee remains effective, it just does not trigger the Agreement at that time. Our decision will not limit or restrict law enforcement agencies from obtaining custody of individuals being held by other jurisdictions.
Hargrove also argues it is contrary to the purposes of the Agreement, and tire requirement of Article IX that it be “liberally construed to effectuate its purposes,” to have prisoners affected by outstanding detainers which were filed prior to sentencing that could be left on file unchecked by the time limits of the Agreement. Hargrove’s argument fails to recognize that tire Agreement never mentions pretrial detainees, and had the legislature intended for them to come with the scope of the statute, it could have easily done so. It appears the drafters of the Agreement wished it to cover sentenced prisoners involved in treatment and rehabilitation and not in situations such as Hargrove found himself in this case where his custody was obtained by Wyandotte County to face capital-murder charges 8 days after his federal sentencing.
As it is presently written, the Agreement applies to detainers filed against individuals presently serving sentences. To “liberally construe” the Agreement to protect individuals not within the express language of the statute would violate our duty of construction to follow the intent of the legislature as expressed: “[W]hen a statute is plain and unambiguous, the appellate court must give effect to the intent of the legislature as expressed instead of determining what the law should or should not be.” State v. Hildebrandt, 270 Kan. 1, 5, 12 P.3d 392 (2000). As the statute states: “The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment.” K.S.A. 22-4401, Article IV(a). From this language alone, there is an unambiguously expressed requirement that an individual be both a prisoner and serving a sentence of imprisonment at the time the detainer is lodged in order for the detainer to come within the scope of the Agreement.
The trial court erred in finding the provisions of the Agreement were invoked under the facts of this case.
Reversed and remanded for further proceedings.
Davis, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
Petitioner Mary Brand filed a motion to modify child support, claiming that respondent Michael Brand’s distributions from several Subchapter S corporations in which he was a minority stockholder should be included as income for purposes of calculating child support. The district court determined that the distributions were not income received as defined in the Kansas Child Support Guidelines. Petitioner appeals.
On November 19, 1996, a decree of divorce was granted to petitioner, and respondent. Spousal maintenance of $1,200 per month was awarded until January 1,2000. The parties were granted joint custody over their three children and petitioner was granted primary residential custody of the two youngest children. Respondent was ordered to pay $800 per month in support and maintenance for the children. As a part of the property division, respondent was awarded the interest in a corporation owned by members of respondent’s family, Brand Plumbing, Inc. (Brand Plumbing). Respondent was also granted the interest in several other Sub-chapter S corporations, including B&E Investments, BBBR Corporation (BBBR), and 3 A.H., Inc. After the divorce, respondent also had ownership interest in Wichita West Development, Inc., a Subchapter S Corporation, and Quail Crossing, L.L.C.
Child support was based on respondent’s salary from Brand Plumbing. No self-employment income' or distributions from the Subchapter S corporations were included in the income computation for support.
In April 1997, the oldest child resumed living with petitioner. Child support was increased to $1,232 per month until the oldest child’s graduation from high school, when support would reduce to $1,155 per month.
In 1998, Brand Plumbing converted to Subchapter S status, and the taxes due on income of the corporation were then “passed through” to respondent as a shareholder responsible for paying the taxes. Respondent could not elect to take distributions of corporate assets independently and the shareholders did not always make distributions in the amount respondent requested. Respondent received a distribution from Brand Plumbing in 1999 for $42,350 to pay his share of the 1998 and a portion of his share of the 1999 income taxes owed on the corporate income. The amount of the distribution was based upon an accountant’s recommendation to the shareholders and a decision by respondent and the other shareholders, respondent’s brothers. In 2000, Brand Plumbing distributed $39,500 for respondent to pay 1999 taxes.
Not all the income from Brand Plumbing was distributed in any given year. Sufficient operating capital was retained so that the corporation could continue to purchase material, purchase vehicles, and finance a possible relocation. Brand Plumbing had assets of $458,000 in 1998, $469,000 in 1999, and $409,000 in 2000. The corporation had historically retained such amounts. Since becoming a Subchapter S corporation, Brand Plumbing had not made distributions in excess of the amount necessaiy to reimburse its shareholders, including the respondent, for their share of the corporation’s tax liability.
In 1999, respondent sold approximately 10 percent of his stock in Brand Plumbing to pay petitioner the final installment payment under the divorce property division settlement. Petitioner did not assert the value of that sale should be included in calculating support because it was a sale of an asset that was awarded to the respondent in the divorce.
Respondent held a 25 percent ownership interest in BBBR. Respondent’s brothers owned the other shares. Capital gains taxes were paid in 1999 as a result of BBBR’s sale of a tract of land. No distributions were made by the corporation to its shareholders.
Respondent and his brothers owned minority interests in the other entities and were considered passive investors. Two friends of the respondent owned the majority interests. Respondent routinely received a distribution from these entities equal to the amount of his tax obligation on the business’ income. Income was reinvested in each of the businesses and applied to reduce the debt held by each entity. Reducing the debt increased “the interest” of the interest holders.
During the marriage, respondent received no distribution in excess of his tax obligations from any of the entities that would have been available to share with his wife and children. After the marriage, he had also received no distributions in excess of his share of entities’ tax obligations.
In 1999, respondent reported income on his Schedule K-l of approximately $200,000 and received approximately $70,000 in distributions. We note respondent reported no income or received no distributions as a result of his interest in Quail Crossing, L.L.C., thus, income and distributions were only as a result of his interest in Subchapter S Corporations. The majority owners of the entities did not expect future distribution amounts to be more than the amount needed by each individual to cover his or her share of the business’ taxes.
After her spousal maintenance terminated, petitioner filed a motion to increase child support to $3,300 per month. At that time, respondent’s salary from Brand Plumbing was between $4,500 and $5,300 per month after taxes. The $3,300 child support amount requested by petitioner was equal to 60 to 65 percent of respondent’s net income.
On September 13, 2000, the district court heard the motion to increase child support. The district judge determined that respondent’s income as reported on his tax returns was not income “received” under Kansas Child Support Guidelines, because: (1) the income was not the taxpayer’s income but corporate income; (2) the shareholder could have elected to pay taxes at the corporate level; (3) the income had not been historically considered by these parties in child support calculations; (4) the issue was raised after spousal maintenance ended; (5) some income was the result of a sale of corporate assets; and (6) the funds would not have been available to the parties for support when the family was intact prior to divorce. The district court then set child support at $1,414 per month based on respondent’s salary from Brand Plumbing. A timely notice of appeal was filed. This court has jurisdiction over the appeal pursuant to K.S.A. 20-3018(c).
We note that the district court’s finding that the shareholder could elect to pay taxes at the corporate level was erroneous. Although it is true that a corporation elects Subchapter S status, thereby passing through taxable income to tire shareholders and avoiding duplicate taxation at the corporate level, such an election, once made, does not allow the shareholder to opt to have the earnings taxed at the corporate level from time to time. However, this finding is not important to our decision.
Standard of Review.
Interpretation of the child support guidelines is a question of law. In re Marriage of Burton, 29 Kan. App. 2d 449, 28 P.3d 427, 430 (2001). However, review of an order setting child support is limited to determining whether there is substantial competent evidence to support the trial court’s findings. See In re Marriage of Hendrick, 21 Kan. App. 2d 964, 968, 911 P.2d 192 (1996). “Substantial evidence is evidence which possesses both relevance and substance so as to form a basis of fact from which the issues can be reasonably resolved.” Dalmasso v. Dalmasso, 269 Kan. 752, 758, 9 P.3d 551 (2000).
Taxation and Income of Subshapter S Corporations.
The tax treatment of corporate distributions is controlled by state law. K.S.A. 79-32,139, which governs taxation of Subchapter S corporate income, states:
“A corporation having an election in effect under subchapter S of the internal revenue code shall not be subject to the Kansas income tax on corporations, and the shareholders of such corporation shall include in their taxable incomes their proportionate part of such corporation’s federal taxable income, subject to the modifications as set forth in K.S.A. 79-32,117, and amendments thereto, in the same manner and to the same extent as provided by the internal revenue code.”
Although a Subchapter S corporation may distribute income, it is not required to do so. Thomas v. Thomas, 738 S.W.2d 342, 344 (Tex. App. 1987). Earnings are owned by the corporation, not by the shareholders. 738 S.W.2d at 344. Subchapter S corporations may accumulate profits, referred to as “retained earnings.” Retained earnings are the net sum of a corporation’s yearly profits and losses. See Rohrer v. Rohrer, 715 A.2d 463, 464 n.2 (Pa. Super. 1998).
Subchapter S status provides an alternate method of taxing a corporation’s income. Thomas, 738 S.W.2d at 344. In a Subchapter S corporation, income tax is paid by the shareholders rather than by die corporation itself. Greely Gas Co. v. Kansas Corporation Commission, 15 Kan. App. 2d 285, 286, 807 P.2d 167 (1991) (citing 26 U.S.C. §§ 1361-78 [1988]). When die tax is paid by the individual, the coiporation avoids income tax liability. Thomas, 738 S.W.2d at 344 (citing 26 U.S.C. § 1371 et seq. [1982]).
A Subchapter S corporation allocates various items of income to shareholders based upon the shareholder’s proportionate ownership of stock. Rohrer, 715 A.2d at 464 n.2 (citing, e.g., 26 U.S.C. 163[d][5][A]). Allocations are itemized on an individual shareholder’s Schedule K-l. See Miller v. Director, Div. of Taxation, 19 N.J. Tax 522, 528 (2001).
Petitioner argues that the district court erred by not including any of respondent’s Subchapter S corporations’ income or distributions, itemized on his K-l income tax statements, in calculating child support. Petitioner asserts that the definition of income in the Kansas Child Support Guidelines is so broadly worded that it includes distributions made by Subchapter S corporations to shareholders. She notes that other jurisdictions, when deciding this issue, have not ruled consistently. She points out that several jurisdictions share her concern that a parent might leave assets in a corporation as retained earnings and avoid support because the assets would not be included in the income calculations used for determining child support. See, e.g., Williams v. Williams, 74 Ohio App. 3d 838, 843, 600 N.E.2d 739 (1991).
Petitioner argues that the district court’s ruling was overly broad and that it erred in determining that Subchapter S income is cor porate income that is not income of the taxpayer. She concludes that if the district court is correct, the taxpayer would not be required to pay taxes on the income. Although petitioner takes issue with the district court’s determination that the distributions were not available for support when the family was intact, she fails to provide meaningful argument on this finding.
Finally, petitioner argues that even if the district court is correct in determining that $197,626 of respondent’s income was not “received” for purposes of determining respondent’s domestic gross income, the district court should have considered the $70,351 distributed to respondent for the purposes of paying his share of the income tax on the corporations’ income.
Respondent asserts that because the amounts at issue were never financially available to the family when they were an intact unit, this case is distinguishable from In re Marriage of McPheter, 15 Kan. App. 2d 47, 51, 803 P.2d 207 (1990), which determined that a father’s Naval Reserve pay relied upon for family expenses during the marriage should be included as income when calculating support. Respondent asserts that because a minority interest holder in a Subchapter S corporation has no ability to control what is distributed, undistributed income is not income for child support purposes. See e.g., Mitts v. Mitts, 39 S.W.3d 142, 148 (Tenn. App. 2000), rev. denied (2001); Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. 2000).
Respondent also contends that distributions to pay tax obligations should not be included as income. Respondent directs the court to rulings from other jurisdictions that determined that such distributions should not be included when determining support obligations. See, e.g., McHugh v. McHugh, 702 So. 2d 639, 642 (Fla. App. 1997).
Respondent points out that his children have never received the benefit of the taxable share of income from these Subchapter S coiporations. He asserts that the retained earnings are the corporations’ income and that there is no evidence that he was manipulating retained earnings to reduce his own income. Respondent addresses petitioner’s policy argument that failure to include distributions and income would encourage parents to leave assets in the corporation to avoid support, noting that he has no ability to control die amount distributed to him by these Subchapter S corporations.
The Law
The Kansas Child Support Guidelines are the basis for establishing and reviewing child support orders. District courts are required to follow the Guidelines. 1998 Kansas Child Support Guidelines § I (2001 Kan. Ct. R. Annot. 97); see also In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998). When setting or revising support:
“The court shall consider all relevant evidence presented in setting an amount of child support, including but not limited to the Child Support Adjustments set forth in Section E of the worksheet [concerning Imputed Income], The calculation of the respective parental child support obligations on Line D.9. of the worksheet [to calculate the Basic Parental Child Support Obligation] is a rebuttable presumption of a reasonable child support order. However, the Court shall complete Section E of the Child Support Worksheet listing all relevant Child Support Adjustments. The Child Support Adjustments shall constitute the written criteria for deviating from the rebuttable presumption. If the Court finds, in the best interests of die child, that the amount of child support as calculated on Line D.9. of the worksheet to be unjust or inappropriate in a particular case, the Court shall apply the Child Support Adjustments to modify the child support amount.” 1998 Kansas Child Support Guidelines § I (2001 Kan. Ct. R. Annot. 97).
The Guidelines define the type of proceeds which should be considered income for purposes of calculating support. “Domestic Gross Income” is defined as income which is regularly and periodically received from any and all sources. 1998 Kansas Child Support Guidelines § II. D. (2001 Kan. Ct. R. Annot. 98). “In determining Domestic Gross Income, it may be necessary for the Court to consider historical information.” 1998 Kansas Child Support Guidelines § II. D. (2001 Kan. Ct. R. Annot. 98).
Domestic gross income for the self-employed is self-employment gross income less reasonable business expenses. 1998 Kansas Child Support Guidelines § II. H. A “Reasonable Business Expense” includes “actual expenditures reasonably necessary for the production of income.” 1998 Kansas Child Support Guidelines § II. G. (2001 Kan. Ct. R. Annot. 100).
This court has not determined whether distributions from Sub-chapter S corporations should be included as domestic gross income. Other courts, when addressing the issue, routinely distinguish between distributions for income for tax purposes and income for child support purposes. Thill v. Thill, 26 S.W.3d 199, 207-08 (Mo. App. 2000); Mitts, 39 S.W.3d at 148 (Tenn. App.). Other courts have noted that where complicated business and tax status applies, the Subchapter S income reflected on the individual’s tax return may not represent the true amount of cash or benefit that may be available to the parent for the support of the child. Thill, 26 S.W.3d at 207 (Mo. App.). Many jurisdictions refuse to impute retained income or corporate debt repayment as shareholder income for purposes of deciding support amounts because such sums are not actually received by the shareholder. McHugh, 702 So. 2d at 642 (Fla.); Fennell, 753 A.2d at 866 (Pa. Super.).
Retained Earnings
Courts have more frequently addressed the corporate earnings issue as it relates to sole shareholders or majority owners who have greater control of corporate distributions and the allocation of earnings. The courts have had fewer occasions to address these issues as they pertain to minority shareholders. Decisions which address the income from distributions to majority shareholders provide helpful guidance, although separate consideration should be given to the fact minority interest holders have less, if any, control over distributions.
In situations where the individual with the support obligation is able to control the retention and disbursement of funds by the corporation, he or she will bear the burden of proving that such actions were necessary to maintain or preserve die business. Fennell, 753 A.2d at 869 (Pa. Super.).
In some jurisdictions, retained earnings are considered as profit attributable to a sole owner, even if the earnings are retained in the business for business reasons. See Merrill v. Merrill, 587 N.E.2d 188, 191 (Ind. App. 1992). However, even in such jurisdictions, the portion of retained earnings to attribute to the sole shareholder parent is a factual question. 587 N.E.2d at 190.
Many state guidelines provide the courts with discretion to closely scrutinize the self-employed parent’s financial situation. See, e.g., 587 N.E.2d at 190. When the reporting parent is the sole shareholder, courts often direct that the corporation’s earnings should be imputed to the shareholder. See Roth v. Roth, 406 N.W. 2d 77, 79 (Minn. App. 1987). Some jurisdictions specifically require that consideration be given to the fact that the sole shareholder, by making payment on corporate indebtedness, is increasing personal net worth. Merrill, 587 N.E.2d at 190-91 (Ind. App.). In such instances, scrutiny is warranted. 587 N.E.2d at 190 (Ind. App.). When a sole or majority shareholder sets his own salaiy, consideration should also be given to the corporation’s earnings and the benefits it provides for the shareholder. See Bleth v. Bleth, 607 N.W.2d 577, 579 (N.D. 2000).
A minority shareholder has less ability to control the amount of earnings retained. Petitioner has not established that respondent manipulated corporate assets, decreased the amount of his salary to increase retained earnings, or acted in anyway to shield income.
Distributions
When a distribution is made, courts differ on the amount to be considered for purposes of support. Some courts base support obligations upon “the amount of income actually distributed . . . rather than upon the higher gross amount of . . . income upon which [the parent] was required to pay federal income taxes.” Mitts, 39 S.W.3d at 148-49 (Tenn. App.). In Mitts, the husband was a minority shareholder of a Subchapter S corporation who had previously been employed by the corporation. After the termination of his employment, he began to receive income distributions in an amount equal to his former salary. The husband’s income for support purposes was determined to be the amount he received in distributions and not the amount reported as gross earnings taxed. 39 S.W.3d at 148 (Tenn. App.).
Other jurisdictions, such as Oregon, operate under a blanket rule that when a corporation attributes undistributed income to a minority shareholder for income tax purposes, that amount is presumptively available to the shareholder for calculating child sup port. Perlenfein v. Perlenfein, 316 Or. 16, 18, 25-26, 848 P.2d 604 (1993). A parent must then present evidence that the “gross income” as calculated is not actually available. 316 Or. at 25. It should be noted, however, that Oregon state regulations, unlike the Kansas Guidelines, do not indicate that corporate income must be “received” in order to be considered. See Perlenfein, 316 Or. at 23-24; 1998 Kansas Child Support Guidelines § II. D.
Kansas rules for determining support provide that historical information should be considered when determining when regular income is received for purposes of calculating domestic gross income under the guidelines. See 1998 Kansas Child Support Guidelines § II. D. The historical information regarding respondent’s interests supports the district court’s conclusion that the amounts distributed to respondent were for the sole purpose of paying his share of the corporation’s taxes and were not available to pay support. See McHugh, 702 So. 2d at 642 (Fla.).
Tax Returns as Evidence
New courts rely solely on personal income tax returns to determine the amount of income available for purposes of calculating support. Taxable income of a Subchapter S corporation which is attributable to a shareholder does not reflect actual income received as a cash distribution. Taylor v. Taylor, 118 N.C. App. 356, 364, 455 S.E.2d 442 (1995), rev’d on other grounds, 343 N.C. 50, 468 S.E.2d 33 (1996). Even in those states with particularized formulas for determining the income available to self-employed payors, the calculation of income is highly fact specific. Glass v. Oeder, 716 N.E.2d 413, 416-17 (Ind. 1999).
There is no presumption that an individual’s share of a Sub-chapter S corporation’s income should be included as income for purposes of calculating child support. Individual inquiry on a case-by-case basis is necessary to ensure that the appropriate amount of income is considered “received” when determining “Domestic Gross Income” for the self-employed.
Policy Argument — Earnings as a Shield
Courts have been reluctant, for policy reasons, to allow a blanket rule that retained earnings of a Subchapter S corporation are not income to be considered when calculating support. Allowing support to be calculated in this way would encourage shareholders to retain earnings in favor of their own long-term financial interests without regard for the need for support. See, c.g., Anderson v. Anderson, 60 Ark. App. 221, 230, 963 S.W.2d 604 (1998). The Arkansas appellate courts have directed that even where the child support calculation chart would allow the taxpayer to deduct from income the amount paid to the shareholder to offset taxation on earnings retained, it is not error for the court ordering support to disallow the deduction when necessary. The chart used to calculate support is merely a rebuttable presumption of the appropriate amount of child support and the presumption can be disregarded where the court makes express findings of fact as to why the presumptive amount is inappropriate. 60 Ark. App. at 233-35.
A factual analysis into whether the retained earnings income should be included is almost always appropriate. Even when working with a statutory formula, evidence to be considered when awarding support includes the extent of the shareholder’s ownership and whether distributions could have been distributed to the shareholder. Gianniny v. Gianniny, 683 N.Y.S.2d 769, 771, (N.Y. App. 1998). An overview of the entire factual history of retained earnings and distributions is recommended. See Cauble v. Cauble, 133 N.C. App. 390, 396-99, 515 S.E.2d 708 (1999). For many jurisdictions, the absence of evidence that the parent wished to shield income from support obligations is highly persuasive. Fennell, 753 A.2d at 869 (Pa. Super.); Williams, 74 Ohio App. 3d at 843.
In Williams, an Ohio appellate court was asked to determine the appropriate amount of income available for child support after a father, a 50 percent shareholder in a corporation, voluntarily ceased drawing a salary from the corporation but continued to receive installment payments of principal and interest on loans he had made to the corporation. The income stream from the loans was awarded to the father as part of the property distribution. The father had the ability to be paid a salary at any time; however, doing so would prohibit the corporation from making loan repayments.
The Williams case demonstrates the potential for manipulation of reportable income. The Williams court interpreted the state’s statute defining income for purposes of child support. The court determined that it was apparent from the statutory definition that “income” for purposes of the child support computation was sufficiently broad enough to include the retained earnings of the father s corporation. As appellee was the owner of 50 percent of the corporation's stock, the value of his stock increased greatly. Under these circumstances, and in light of the expansive definition of “income” in the statute, the court concluded it would be “grossly inequitable” to allow the supporting shareholder parent “to sit upon his assets, hide behind the shield of corporate business decisions, and prevent his children from enjoying the standard of living they would have enjoyed had the marriage continued.” 74 Ohio App. 3d at 843. Under such circumstances, it was unreasonable and an abuse of discretion for the trial court not to consider the retained earnings of the corporation when ruling upon the motion to modify the support order. 74 Ohio App. 3d at 842-43.
As this Ohio case demonstrates, the potential for abuse is present. However, even where the support statute or rule contains a broad definition which could encompass earnings and distributions, a case-by-case analysis is appropriate.
Kansas Guidelines are broadly worded and could be interpreted so that Subchapter S corporate earnings or distributions are included in the definition of domestic gross income. However, in this matter, based on the district court’s finding, it would be inappropriate to include the corporate earnings or distributions when setting income for purposes of determining the proper amount of support. As this case demonstrates, no blanket rule would be workable.
Lump Sum Layout
Petitioner has a stronger argument regarding the income received by respondent from the sale of the land owned by BBBR. However, petitioner fails to acknowledge that Kansas courts have already determined that lump sum payouts are not income regularly received and thus cannot be considered income for purposes of calculating support. In re Marriage of Case, 19 Kan. App. 2d 883, 891, 879 P.2d 632, rev. denied 255 Kan. 1002 (1994). The income from BBBR should not be included in respondent’s income for purposes of determining support.
Conclusions
Petitioner’s public policy argument is compelling, but the facts of this case do not suggest abuse. Respondent’s corporate income is not an amount that the respondent or the court can calculate as income regularly received. To include such amounts would require that respondent’s income be revisited every year to determine appropriate support amounts based upon the current yearly distributions. Kansas Guidelines indicate that only income regularly received is to be included in setting support.
Kansas Guidelines give the district court power to consider all relevant evidence in setting the amount of support. There can be no bright line rule concerning undistributed earnings or corporate distributions of a Subchapter S corporation. A corporation must sometimes necessarily retain profits, not everyone stands in a position to force distribution of a corporation’s profits, and not all distributions to shareholders increase their ability to pay support. A case-by-case analysis is required before it can be • determined whether to attribute retained profits or distributions of a Subchapter S corporation as income for purposes of calculating support.
The district court did not abuse its discretion when it determined that these particular distributions were not “received” for purposes of calculating domestic gross income under the Kansas Child Support Guidelines.
Factors for Consideration in Determining Income
Whether to characterize corporate earnings, profit, distributions, or salary as income is highly fact specific, Glass, 716 N.E.2d at 416 (N.C. App.), as is whether to deduct ordinary and necessary expenses from the corporate distributions when calculating income, In re Marriage of Upson, 991 P.2d 341, 343-44 (Colo. App. 1999).
There are many factors to be considered when determining what amount of a Subchapter S corporation’s income should be included as income for purposes of calculating support. Some of those factors include past earnings history of the corporation, ownership share, and the shareholder s ability to control distribution or retention of the net profits of the business. In those cases where income can be manipulated because of the ability to control distributions, heightened scrutiny should be exercised. See McDaniel v. McDaniel, 653 So. 2d 1076, 1077 (Fla. App. 1995).
Under the facts of this case, there was no indication that respondent had manipulated income for the purposes of avoiding support obligations. Respondent did not have the ability to control the distribution of corporate assets. Thus, there was substantial competent evidence to support the trial court’s decision not to consider retained earnings and distributions in calculating respondent’s support obligation.
The decision of the district court is affirmed.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Larson, J.:
This appeal raises questions of whether a trial court has jurisdiction to consider a motion to withdraw nolo contendere or guilty pleas and, if it does, whether it is an abuse of discretion to permit withdrawal of the pleas and dismissal of charges after the defendant had pled guilty, or nolo contendere and been sentenced, granted probation, and discharged from probation.
In May 1995, Donato M. Stough was charged with 22 drug-related counts, including numerous counts of unlawful use of a communications facility (telephone) in violation of K.S.A. 1994 Supp. 65-4141, and numerous counts of possession of illegal substances in violation of K.S.A. 1994 Supp. 65-4163(a)(3). The charges arose from conduct during February 1995. Shawnee County Sheriff s Officer Timothy Oblander, who was acting as an undercover agent, observed Stough’s illegal acts and collected evidence, including the controlled substances seized throughout the investigation, according to the affidavit of the assistant district attorney requesting arrest warrants.
On December 8, 1995, Stough pled guilty to one count of violating K.S.A. 1994 Supp. 65-4141 and one count of violating K.S.A. 1994 Supp. 65-4163(a)(3). He was sentenced on February 23, 1996, to a controlling sentence of 22 months in prison. The court suspended the sentence and placed Stough on 36 months’ probation. He successfully completed the terms of his probation and was discharged therefrom by an order filed July 17, 1998.
On March 28, 2001, Stough moved to set aside his pleas and for dismissal of the charges with prejudice because, as stated in his motion, “[a]fter completing probation, the defendant discovered there was a strong potential that former Sheriff s Department deputies tampered with the evidence in this matter” and “[o]n May 11, 1999, in case number 95CR1809, the Honorable Judge Eric Rosen [held] similarly situated defendants in cases with potential tampering could file for appropriate relief consistent with the court’s order.”
The State’s response noted Stough had completed his sentence and Judge Rosen’s order was issued after Stough had been released from probation. It contended the court lacked jurisdiction to “enter any orders whatsoever in regards to the case, the pleadings, the plea, the sentence, post-sentence matters or otherwise.” The response suggested that if Stough had a post-conviction challenge, the appropriate remedy was to exercise the proceedings contemplated by K.S.A. 60-1507.
At the extremely abbreviated hearing, the trial judge who had earlier sentenced Stough and granted him probation noted that Stough’s motion “emanates[d] from the Hernandez situation.” Defense counsel apprised the court that the delay had resulted from previous counsel not taking action on Stough’s behalf, that an arresting officer had told him Stough fell within the perimeters of the court’s order in the Hernandez case, and that charges against two of Stough’s codefendants had been dismissed, one when Officer Oblander claimed his Fifth Amendment right to remain silent and refused to testify.
The State orally argued the contentions of its written response that the court lacked jurisdiction and the motion would need to be brought under K.S.A. 60-1507. Stough’s counsel orally moved to seek the requested relief pursuant to K.S.A. 60-1507. The court granted Stough’s motion.
The court then said:
“And we also don’t need to get into a great deal of those facts, because this Court and Mr. Rues [the prosecutor] have been down this road several times before and are intimately aware of all the allegations that relate to the Oblander situation and the Hernandez case, and so we don’t need to restate all those matters.”
The State responded that it would oppose the motion on previous grounds raised (apparently in reference to cases previously before the court where the same issues had been argued) by stating: “We stand on previous grounds that we had before in terms of the abiliiy to prove that all the evidence was tampered with that we previously appeared in front of you on.”
The court did not ask Stough’s counsel for any evidence or for any further statement and immediately sustained Stough’s motion to set aside his pleas and dismissed the charges with prejudice. The court said:
“Well, again this Court has extensively heard that evidence and has come to the conclusion that certainly the activities by the sheriffs office during the critical dates, and I don’t think there is any dispute that this case falls within those dates, would raise any evidence seized in that situation and being held by the sheriff s department would have been tainted and that it was all due to the very outrageous conduct of the sheriff s department during that time period.
“The Court is going to go ahead and sustain the defendant’s motion.”
From this ruling, the State has appealed.
Although the trial court failed to directly rule on the State’s claim of lack of jurisdiction, the ruling made must be considered to be a denial of the State’s response and a finding that jurisdiction existed. Therefore, we first consider the State’s argument that the district court lacked jurisdiction to consider Stough’s motion because he had completed the term of his sentence and had been discharged from his probation.
Jurisdiction is a question of law over which this court has unlimited review. State v. Snelling, 266 Kan. 986, 988, 975 P.2d 259 (1999). It logically follows that if an order of the district court was entered without jurisdiction, this court does not acquire jurisdiction on appeal. See Board of Sedgwick County Comm’rs v. Action Rent to Own, Inc., 266 Kan. 293, 296, 969 P.2d 844 (1998).
In support of its argument of lack of jurisdiction, the State relies on State v. Farmer, 16 Kan. App. 2d 419, 824 P.2d 998 (1992), and State v. Underwood, 228 Kan. 294, 615 P.2d 153 (1980). In Farmer, the defendant was discharged from probation by the trial court. In a later order the trial court attempted to rescind the discharge. The Court of Appeals reversed the trial court and held that once the defendant was discharged the court was without jurisdiction to order him back on probation. 16 Kan. App. 2d at 422.
Farmer is not applicable to the facts of our case. It specifically relates to and directly involves the court’s probationary powers under K.S.A. 21-4611(1). Unlike tire Farmer case, the trial court in our case did not attempt to exercise jurisdiction over Stough to place him back on probation after his probation had been terminated. Here, Stough’s case involves the power of the trial court to permit withdrawal of a plea after sentence under K.S.A. 22-3210(d), which specifically states:
“A plea of guilty or nob 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.”
Underwood is on point, but, contrary to the State’s argument, it is supportive of jurisdiction to consider the motion to with draw the pleas after sentence. In Underwood, the defendant appealed the trial court’s refusal to permit him to withdraw his plea for a previously committed crime, the conviction of which was essential to upholding his guilt of felony murder. Underwood argued that as to the plea to his previous crime, he had been promised that no sentence would be imposed and that after successfully serving 2 years of probation, the case would be dismissed or automatically expunged. The trial court held:
“ ‘The defendant has served his period of probation and has been released by the court. The judgment has been completed, the order executed, and the defendant released by the court. Therefore, the court has no jurisdiction to carry out the provisions under K.S.A. 22-3210(7), [now K.S.A. 22-3210(d)] as requested by the defendant.’ ” 228 Kan. at 297.
Our court upheld the decision of the trial court, but on the grounds it was not an abuse of discretion to refuse to allow the plea to be withdrawn. At no point did we conclude the trial court lacked jurisdiction to permit withdrawal of the plea, and the effect of our decision was directly to the contrary. After reviewing the record, we quoted the last sentence of K.S.A. 22-3210(7) (Weeks), held that Underwood’s testimony had been rejected by the trial court, and then stated:
“A plea of guilty or nolo contendere may be withdrawn after sentence as provided in K.S.A. 22-3210(7) for good cause shown only when in the discretion of the trial court it becomes necessary to correct manifest injustice. Not every deviation from the requirements of the statute governing entry of pleas will require withdrawal of a plea, Trotter v. State, 218 Kan. 266, 269, 543 P.2d 1023 (1975). In Hicks v. State, 220 Kan. 279, 283, 552 P.2d 889 (1976), we held the failure of the sentencing court to advise the defendant as to his parole eligibility did not require withdrawal of defendant’s plea of guilty. Withdrawal of a plea is discretionary with the trial court. Considering the lapse of time and the facts of this case we cannot find the trial court abused its discretion in refusing to permit the appellant to withdraw his plea.” 228 Kan. at 300.
Underwood does not support the State’s argument. The court specifically declined to reach its conclusion based on lack of jurisdiction, but rather found the existence of jurisdiction and that the court had properly exercised its discretion in refusing to permit the withdrawal of the plea “to correct manifest injustice.”
This result and holding is entirely consistent with the histoiy of proceedings in Kansas where withdrawal of a plea has been requested. The cases are legion in number, and the overwhelming result is that the request is denied.
When the present statutory provision was enacted in 1970 as 22-1210(7) (with language nearly identical to K.S.A. 22-3210[d]), the comment in the October 1969 Kansas Judicial Council Bulletin, p.68, stated: “Many current post-conviction proceedings raise questions concerning pleas of guilty. Claims of coercion, lack of advice and lack of understanding are common in such cases. The proposal seeks to avoid these problems.”
The problems have not been avoided as we continue to have large numbers of cases where pleas are asked to be withdrawn, but the statutory language mirrors what was the Kansas common law prior to 1970.
The standard incorporated in the statute is well set forth in State v. Byrd, 203 Kan. 45, 52-53, 453 P.2d 22 (1969), were we stated:
“An analysis of our decisions indicates permission to withdraw a plea depends upon the facts and circumstances of each case. Generally, it is a question of fact for the trial court to determine if the plea was voluntarily and understandingly made. The issue to be determined is whether the ends of justice will be served by permitting the withdrawal. If a manifest injustice to the defendant would result from refusal then permission to withdraw should be granted. [Citations omitted.]”
An excellent summary of this issue is set forth by Chief Justice Harvey in State v. Nichols, 167 Kan. 565, 207 P.2d 469 (1949), where nine cases beginning with City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233 (1890), and ending with State v. Bowser, 155 Kan. 723, 129 P.2d 268 (1942), were reviewed. In discussing motions to set aside a plea, Nichols opinion stated:
“The appropriate method of seeking to have that done is for defendant to file a motion in tire same court and in die same case in which the plea was entered. The motion should set up die facts in issuable form showing or tending to show grounds upon which the plea should be set aside. Ordinarily it is required to allege that the defendant is not guilty of the crime charged. The time of the filing of the motion, whether before or after the sentence, is not controlling. Neidier is the fact that defendant has appealed his case, or is serving the sentence imposed, controlling, but it 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. It is possible, of course, that defendant may file such a motion when no such grounds exist. When the motion is filed alleging facts which would justify the court granting it, if established by competent evidence, a hearing may be offered in favor of or opposed to the motion. The court has jurisdiction to hear and rule upon the motion. It is not a motion for a new trial, though if granted the result is to give defendant another opportunity to have a trial, if he wants it. The motion is addressed to the sound judicial discretion of the court. This discretion should never be abused.” 167 Kan. at 577-78.
The Nichols opinion recognized that at that time there was “no statute specifically pertaining to motions to withdraw pleas of guilty in criminal cases. The matter [was] handled in each case upon principles of natural justice as applied to the facts of the case and the legal situation.” 167 Kan. 565, Syl. ¶ 4.
When the statutory provisions of L. 1970, ch. 129, sec. 22-3210(7) (now K.S.A. 2000 Supp. 22-3210[d]) were enacted, the legislature placed no limitation on the time within which a motion to withdraw a plea after sentence must be filed. We will not impose such a limit when the legislature has not so provided. We hold the trial court has jurisdiction at any time after a sentence is imposed to permit a defendant to withdraw his or her plea in order to correct manifest injustice. This has been our court-designated rule through the years and remains our statutory rule under K.S.A. 2000 Supp. 22-3210(d).
Although the State’s response to Stough’s motion only contended the trial court lacked jurisdiction to consider the relief requested, it also suggested that if a remedy existed, it would be under K.S.A. 60-1507. The State now admits this assertion to be erroneous because Stough was not in custody under any sentence. We agree.
In addition to its jurisdiction argument, the State at the hearing before the trial court said it relied on “previous grounds . . . that we previously appeared in front of you on.” It appears the State realized from previous cases where the same issues and facts had been presented that there was “manifest injustice” in the actions of Officer Oblander, and the State chose in this case to primarily malee its stand on the lack of jurisdiction argument. That argument is fully briefed on appeal, but the State also now for the first time alleges:
(1) There is no right to attempt to withdraw a plea when a defendant has previously been found guilty after a nolo contendere plea,
(2) Stough was required to and failed to allege he was not guilty of the crimes charged,
(3) withdrawal of the pleas and setting aside the convictions still require the convictions to exist for subsequent sentencing purposes, resulting in no essential difference between the relief granted here and expungement relief, which is available and so precludes any showing of “manifest injustice,”
(4) it was an abuse of discretion to permit withdrawal of the pleas and dismissal of the charges without showing the drug evidence against Stough was tampered with,
(5) a hearing should have been held requiring proof that the specific evidence in Stough’s case had been tampered with, and
(6) allowing withdrawal of the plea and dismissing the charge of unlawful use of a communications facility (telephone) was improper because the charge was not connected to drug evidence.
While it might appear proper to refuse to consider these arguments as they involve questions and issues not presented to the trial court, which we do not generally consider for the first time on appeal, see State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999), the overriding single issue these contentions collectively raise is that the trial court abused its discretion in granting Stough the relief he requested. And, since Stough’s motion asked the court “to correct manifest injustice,” the question of whether the trial court abused its discretion in granting the requested relief is an issue properly raised on appeal which we must consider.
When the question is raised as to whether judicial discretion was abused, we have said: “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
We do not endorse the summary manner in which the motion was considered and are in fact severely restricted by the limited record in this case. However, Stough correctly argues an appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes the action of the trial court was proper. State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997).
The trial judge and the prosecutor had clearly been involved in several earlier cases where the precise questions and issues raised here had been resolved against the State. The trial court took judicial notice of the conduct of Officer Oblander. He was the only substantial witnesses against Stough and had refused to testify against a codefendant of Stough5s after claiming his Fifth Amendment rights against self-incrimination. It is questionable that judicial notice of these actions was proper under K.S.A. 60-409, see Jones v. Bordman, 243 Kan. 444, 459, 759 P.2d 953 (1988), but there was no objection by the prosecutor. See K.S.A. 60-404, State v. Deiterman, 271 Kan. 975, 984, 29 P.3d 411 (2001). In fact, the prosecutor’s statement that “[w]e stand on previous grounds that we had before in terms of the ability to prove that all evidence was tampered with that we previously appeared in front of you on” appears to be an admission that the evidence had been tampered with as Stough had alleged.
The State unconvincingly argues that when Stough entered his plea, he waived his rights to later withdraw that plea. While K.S.A. 22-3209(2) does say that a “plea of nolo contendere is a formal declaration that the defendant does not contest the charge,” this does not override or nullify the rights granted by 22-3210(d) to withdraw that plea “to correct manifest injustice.”
We have recently answered the State’s contention that Stough’s motion must allege that he was not guilty in State v. Vasquez, 272 Kan. 692, 36 P.3d 246 (2001). In a unanimous opinion with Justice Allegrucci speaking for the court we analyzed the precise issue, although the request there was for withdrawal of a plea before sentencing. We said: “It is apparent that this court does not require an allegation that the defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing.” 272 Kan. at 696. We hold that such a rule would also apply when the request was made after sentencing.
The effect of the trial court’s order as to Stough’s criminal histoiy in a subsequent sentencing hearing and whether expungement is available is not a question that has any bearing on our decision in this case and will not be considered.
The State’s argument that because Oblander’s conduct only affected the drugs seized, it was unreasonable for the trial court to permit withdrawal of a plea and to dismiss with prejudice the charge of unlawful use of a communications facility (telephone) fails for one primary reason. The arrest affidavit shows that all of the telephone calls upon which the charges were based were between Stough and Oblander. Where Oblander had claimed the Fifth Amendment in Stough’s codefendant’s case, it is not unreasonable for the court to expect the same conduct on Stough’s charges.
As to the contention that a hearing should have been held, that is exactly what the proceedings before the trial court purported to be. While it would have béen more desirable for the purpose of our review to have the ability to examine the precise testimony with which the parties were apparently familiar, we must deal with the record that we are presented.
The State apparently realized its only chance for success was on its lack of jurisdiction argument. As we have held, that attempt fails. We can only conclude from the record presented that the State conceded sufficient facts existed to find the pleas should be withdrawn and the charges dismissed “to prevent manifest injustice.” It was not an abuse of discretion for the trial court to so rule.
Affirmed.
Davis, J., not participating.
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Per Curiam,-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Stanley J. Juhnke, of Hutchinson, an attorney admitted to the practice of law in Kansas. The hearing panel concluded that respondent had violated KRPC 5.3(b) (responsibilities regarding nonlawyer assistants) (2001 Kan. Ct. R. Annot. 422) and KRPC 5.5(b) (unauthorized practice of law) (2001 Kan. Ct. R. Annot. 424). Several other alleged rule violations were dismissed. The panel recommended unpublished censure. Respondent has filed no exceptions to the hearing report, requesting only that no greater discipline be imposed.
The panel found and concluded as follows:
FINDINGS OF FACT
“Assisting in the Unauthorized Practice of Law
“2. On March 2, 1984, Charles K. Hyter voluntarily surrendered his license to practice law in the state of Kansas. Mr. Hyter surrendered his license following his conviction on a felony charge of income tax evasion. See In re Hyter, 235 Kan. 1, 1-2, 677 P.2d 1017 (1984). Thereafter, on March 6, 1984, the Kansas Supreme Court accepted Mr. Hyter’s voluntary surrender of his license to practice law and entered an order disbarring Mr. Hyter.
“3. Mr. Hyter served a prison sentence from May, 1984, through July, 1984. After being released from prison, in August, 1984, Mr. Hyter went to work for the Respondent as a legal assistant on a part-time basis. [From April 1996 until his discharge on August 18, 2000, Hyter’s employment with respondent was on a full-time basis.] Initially, Mr. Hyter assisted the Respondent with appellate brief writing. Thereafter, Mr. Hyter’s responsibilities expanded to whatever was placed on his desk. Because he had extensive experience in the areas of real estate, probate, and business practice, Mr. Hyter handled many cases in tírese areas.
“4. Eventually, Mr. Hyter’s duties included writing contracts, maintaining client files, meeting clients personally and telephonically, writing letters, preparing pleadings, and providing legal advice.
“5. Neither Mr. Hyter nor the Respondent held Mr. Hyter out as being a licensed attorney. However, Mr. Hyter testified that he had from 175 to 300 client conferences per year, and from 3 to 20 telephone calls per day.
“6. The Respondent knew that Mr. Hyter was writing contracts, maintaining client files, meeting clients personally and telephonically, writing letters, preparing pleadings, and providing legal advice. The Respondent billed his clients for Mr. Hyter’s time at the same rate as that which he billed for his own time.
“Childs Case (DA7989)
“7. Childs Electric, Heating, and Air Conditioning (hereinafter ‘Childs’), the Respondent’s client, held a lien interest in a property. The property was the subject of litigation in JCC, Inc., d/b/a Childs Electric, Heating & A/C vs. MAS Investments, L.L.C., et al., Reno County District Court case numbered 97C117. Childs sold its lien interest in the property to Clark Real Estate (hereinafter ‘Clark’).
“8. On February 3,1998, the Respondent was present at a pretrial conference regarding the Childs’ interest in the subject property. At that time, the court dismissed Childs’ interest in the claim of proceeds by the District Court, because Childs had previously sold its interest to Clark.
“9. Later, because property taxes had not been paid, the property subject to the lien interest was sold at a sheriff s sale pursuant to Board of County Commissioners vs. Albright, et al., Reno County District Court case numbered 98C120. After the taxes were satisfied, a residue amount was left. Joseph O’Sullivan, in his capacity as counsel for the county, notified the Respondent of the residue.
“10. Mr. Hyter handled the Childs’ case for the Respondent. When Mr. Hyter received the notification from Mr. O’Sullivan, Mr. Hyter prepared a Motion for Distribution of Overage. The Respondent signed the motion, which was filed with the District Court of Reno County, Kansas. At the time when the motion was prepared, the Respondent should have known and Mr. Hyter knew that Childs no longer held any interest in the property.
“11. On December 18, 1998, a hearing was held on the Motion for Distribution of Overage. The Respondent appeared at that hearing. A journal entry was prepared and a check in the amount of $2,231.36 was drawn on the account of the Clerk of the District Court, payable to Childs.
“12. In December, 1998, Mr. Hyter forged the signature of Childs, cashed the check, and converted the funds to his own use.
“13. On January 11, 1999, Clark filed a separate Motion for Payment of Proceeds to Lienholder. On January 26, 1999, an order was issued authorizing payment of $2,231.36 to Clark, which the Clerk of the District Court thereafter disbursed from her account to Clark.
“14. In 1999, Mr. O’Sullivan was contacted by Sharon Hockersmith. Ms. Hockersmith was entitled to receive in excess of $11,000 of the residue. When Mr. O’Sullivan attempted to have her share of the residue paid to her he discovered that there were not sufficient funds in the account to cover Ms. Hockersmith’s share. Mr. O’Sullivan reviewed the account and discovered that the hen interest, formerly held by Childs had been paid twice — to Childs and to Clark.
“15. On October 14,1999, Mr. O’Sullivan wrote to the Respondent explaining in detail that Childs was not entitled to the money from the sale proceeds, that Ms. Hockersmith had been injured as a result of the Respondent’s representations to the District Court, and that the Respondent may have violated several rules of the Kansas Rules of Professional Conduct. Because the Respondent did not see Mr. O’Sullivan’s letter, the Respondent did not contact Mr. O’Sullivan. Instead, Mr. Hyter called Mr. O’Sullivan and stated that there had been a mistake and that the money would be returned.
“16. When he did not receive the refund and when he did not hear from the Respondent, on June 22, 2000, Mr. O’Sullivan filed a Motion for an Order Resolving Duplicate Payment and Ordering Refund. The matter was scheduled for hearing. Prior to the hearing, Mr. Hyter called Mr. O’Sullivan and requested a continuance of the hearing. In response, on July 6, 2000, Mr. O’Sullivan sent a letter to the Respondent via facsimile confirming the contents of the telephone conference between Mr. O’Sullivan and Mr. Hyter.
“17. Mr. Hyter made notes in the margins of Mr. O’Sullivan’s letter of July 6, 2000, and sent the marked letter to Mr. O’Sullivan via facsimile.
“18. On July 27, 2000, Mr. Hyter delivered a cashier’s check to Mr. O’Sullivan’s office in the amount of $2,531.36. [The amount returned, $2,531.36, included $300 in attorney fees paid by Mr. O’Sullivan in connection with obtaining the refund.]
“19. On August 18,2000, the Respondent received a copy of a complaint filed by Mr. O’Sullivan from the Disciplinary Administrator’s office regarding the Childs case. That morning, the Respondent confronted and terminated Mr. Hyter.
“20. After terminating Mr. Hyter, the Respondent audited his files to determine if Mr. Hyter had engaged in other misconduct. At that time, the Respondent did not discover any other irregularities,
“Watertite Case (DA8069)
“21. The Respondent represented Watertite Roofing Company (hereinafter Watertite’) in a collection matter. After the Respondent was initially unable to resolve the case, the Respondent prepared and filed a civil suit in the District Court of Reno County, Kansas.
“22. The Respondent obtained a judgment in favor of his client, Watertite. The Respondent was unable to collect the judgment, and thereafter, filed the judgment of record in Pratt County, Kansas.
“23. Mr. Hyter, without the knowledge or permission of Watertite or the Respondent, contacted the defendants and reached an agreement regarding the judgment. Mr. Hyter and counsel for the defendants prepared an agreed upon Journal Entry of Judgment. In the journal entry, Mr. Hyter agreed to setde the judgment previously filed for $1,066.50. Mr. Hyter forged the Respondent’s signature on the Journal Entry of Judgment. Thereafter, the journal entry was filed in the Pratt County District Court on June 23,1999. On July 22,1999, Mr. Hyter received a check in the amount of $1,100.00. Mr. Hyter forged the check, and deposited the funds into his personal account.
“24. Mr. Hyter prepared a release and satisfaction of judgment in case numbered 97JL27. Mr. Hyter forged the Respondent’s signature on the release and satisfaction of judgment, and on August 22, 1999, filed the same with the Pratt County District Court.
“25. On October 13, 2000, the Respondent learned that Mr. Hyter settled the case, converted the funds, and forged the Respondent’s name on the pleadings. The Respondent did not discover the problems in this case during his earlier audit of his files because there were no supporting documents in the file.
“26. At the hearing on this matter, the Respondent testified that prior to Mr. Hyter’s disbarment, Mr. Hyter was a skilled attorney. The Respondent further testified that because Mr. Hyter was capable, the Respondent did not find it necessary to supervise Mr. Hyter’s work.
"27. On October 16, 2000, the Respondent apologized to Mike and Nancy Oden, the owners of Watertite. Along with the letter of apology, the Respondent forwarded a check for restitution in the amount of $7,487.08.
“CONCLUSIONS OF LAW
“Based upon the above findings of fact the Hearing Panel makes the following conclusions of law:
“1. KRPC 5.3 provides as follows:
“With respect to a nonlawyer employed or retained by or associated with a lawyer:
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer[.]’
Id. In this case, the Respondent failed to provide adequate supervision of Mr. Hyter. The Respondent treated Mr. Hyter as though he was a partner or associate, rather than a law clerk. Because Mr. Hyter had been convicted of a felony crime of dishonesty, the Respondent should have supervised Mr. Hyter’s conduct to ensure that the Respondent’s clients were adequately safeguarded. The Respondent failed to take steps necessary to ensure that Mr. Hyter complied with the Kansas Rules of Professional Conduct and the criminal statutes of Kansas. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 5.3.
“2. The Respondent is charged with assisting a disbarred attorney, Charles K. Hyter, with the unauthorized practice of law. KRPC 5.5(b). A general definition of the ‘practice of law’ has been quoted with approval as follows:
‘As the term is generally understood, the “practice” of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.’
State ex rel. v. Perkins, 138 Kan. 899, 907-8, 28 P.2d 765, 769 (1934) (quoting Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836). In addition to that general definition, the Court has set forth what suspended and disbarred attorneys may and may not do:
‘The consensus is that an attorney suspended from the practice of law may obtain employment as a law clerk, providing there are certain limitations upon tlie suspended attorney’s activities. Regarding limitations, we are persuaded the better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer’s functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.
‘Obviously, we do not accept that a disbarred or suspended lawyer may engage in all activities that a nonlawyer may perform. By barring contact with the licensed attorney-employer’s clients, we prohibit a disbarred or suspended attorney from being present in the courtroom or present during any court proceedings involving clients.’ In re Wilkinson, 251 Kan. 546, 553-54, 834 P.2d 1356 (1992) (emphasis added).
Attorneys who employ suspended or disbarred attorneys, are ‘subject to discipline if the suspended [or disbarred] attorney engages in the unauthorized practice of law or in unethical professional conduct.’ Id. at 553. In this case, Mr. Hyter engaged in the unauthorized practice of law while employed as a law clerk for the Respondent. The Respondent was aware that Mr. Hyter met with clients and engaged in other activity that constitutes the practice of law. Mr. Hyter’s unauthorized practice of law spanned many years. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 5.5(b).
“3. The Disciplinary Administrator alleged in the Formal Complaint that the Respondent also violated KRPC 1.3, KRPC 1.15(a), KRPC 1.15(b), KRPC 3.1, KRPC 3.3(a), KRPC 8.4(d), and KRPC 8.4(g). The evidence does not support findings that the Respondent violated those mies. Therefore, the allegations in the Formal Complaint that the Respondent violated KRPC 1.3, KRPC 1.15(a), KRPC 1.15(b), KRPC 3.1, KRPC 3.3(a), KRPC 8.4(d), and KRPC 8.4(g), are dismissed.”
RECOMMENDED SANCTION
Based on these findings and conclusions, the panel recommended censure by this court and that such censure not be published in the Kansas Reports. The panel considered the following standards as well as mitigating and aggravating circumstances:
“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 the profession to comply with the rules and decision of the court.
“Mental State. The Respondent negligently violated his duty.
“Injury. Watertite, the Respondent’s client, suffered an actual injury as a result of the Respondent’s misconduct. Certainly, however, the injury suffered by Watertite was completely mitigated by the timely payment of restitution by the Respondent. Watertite’s owners remained clients of the Respondent even after this incident occurred.
“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 was previously informally admonished on June 12, 1987 for violating DA 1-102(A)(5), DR 4-101(B)(2), and DR 5-105(A). [The final hearing report further notes: “At the time the Respondent was disciplined in 1987, the disciplinary rules in the state of Kansas were known as the Disciplinary Rules of the Code of Professional Responsibility rather than the Kansas Rules of Professional Conduct.”]
“Selfish Motive. The Hearing Panel concludes that the Respondent’s misconduct was motivated by selfishness. The Respondent testified that he billed Mr. Hyter’s time at the same rate as that which he billed for his own time. By billing Mr. Hyter’s time at the rate of an attorney, while paying Mr. Hyter only as a law clerk, the Respondent dramatically increased his revenues. Accordingly, the Hearing Panel concludes that selfishness motivated the Respondent’s misconduct.
“Pattern of Misconduct. The Respondent engaged in the misconduct in this case beginning in 1984. Because the misconduct was ongoing for a period of many years, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
“Substantial Experience in the Practice of Law. At the time of the misconduct, the Respondent had practiced law for 21 years. As such, the Respondent has substantial experience in the practice of law.
“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:
“Timely Good Faith Effort to Make Restitution. Within three days of discovering the unauthorized settlement of the Watertite judgment, the Respondent forwarded a check for restitution to his client. The Respondent’s payment of restitution evidenced his good faith in this regard.
“Present and Past Attitude of Cooperation. The Respondent’s attitude is a mitigating circumstance in this case. He fully cooperated with the investigation and prosecution of the disciplinary case. Additionally, the Respondent, through counsel, self-reported the Watertite case.
“Previous Good Character and Reputation. The Respondent is an active and productive member of the bar in Hutchinson, Kansas. He enjoys the respect of his peers and business associates and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.
“Remorse. At the hearing on this matter, the Respondent testified that he has suffered humiliation as a result of the events of this case. Additionally, as evidenced by his letter of October 16, 2000, the Respondent apologized to Watertite for the misconduct.
“Remoteness of Prior Offenses. The informal admonition administered in 1987 is remote.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 7.3. That standard provides, in pertinent part:
‘Reprimand is generally appropriate when a lawyer negligently 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.’
Id. Based upon the findings of fact, conclusions of law, and compelling mitigating factors, the Hearing Panel unanimously recommends that Respondent be censured by the Kansas Supreme Court. The Hearing Panel further recommends that censure not be published in the Kansas Reports.”
DISCUSSION
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2001 Kan. Ct. R. Annot. 259); In re Harris, 261 Kan. 1063, 1066, 934 P.2d 965 (1997). A hearing panel’s report is deemed admitted under Rule 212(c) and (d) (2001 Kan. Ct. R. Annot. 263) when respondent fails to file exceptions. In re Howlett, 266 Kan. 401, 969 P.2d 890 (1998); In re Farmer, 263 Kan. 531, 950 P.2d 713 (1997). No exceptions have been filed to the panel’s report. We conclude the panel’s findings of fact are supported by clear and convincing evidence and fully support the panel’s conclusions of law. The panel’s findings and conclusions are adopted by this court. This leaves the matter of determining the appropriate discipline to be imposed.
The facts herein will illustrate the risks involved in the employment in a legal office of a suspended or disbarred attorney and the need for close supervision of such an employee. From the record it is shown that, during the period in question, respondent’s law office consisted of himself, Hyter, and two secretaries. Respondent testified that Hyter had “[v]ery good legal skills” and that he relied on him. Respondent would ask for Hyter’s opinion on legal matters.Hyter was paid on an hourly basis of $18 per hour, initially, which had increased to $20 per hour by the time of his termination. Pay was computed on the basis of Hyter’s timesheets. Respondent billed for Hyter’s service at the same hourly rate as respondent charged for his own services. As the panel noted, under this arrangement, respondent’s revenues “dramatically increased.” From the disbarred or suspended attorney’s standpoint, the risk of overstepping the boundaries of what he or she is legally permitted to do is far greater than that of, say, a paralegal. The disallowed legal tasks the disbarred or suspended attorney is working on may be matters he or she has felt comfortable in performing for many years while licensed to practice law. Hyter practiced law for 16 years prior to his disbarment and was experienced in the general practice of law. He obviously had difficulty accepting the fact that he was no longer legally permitted to do much of the type of work he had done in the past. As noted by the panel, respondent and Hyter’s professional relationship was more that of partners or partner and associate attorney. Little orno supervision of Hyter was undertaken by respondent despite his obligation to provide close supervision and set appropriate parameters as to the work Hyter could legally perform.
The panel has recommended unpublished censure. We disagree therewith. We conclude published censure is the appropriate dis cipline herein, although a minority would impose greater discipline.
It Is Therefore Ordered that Stanley J. Juhnke be censured in accordance with Supreme Court Rule 203(a)(3) (2001 Kan. Ct. R. Annot. 224).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs herein be assessed to respondent.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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|
The opinion of the court was delivered by
Six, J.:
Leon M. McClennon, Jr., was convicted of 11 counts of rape, among a number of other crimes. McClennon sought reversal of the upward durational departure sentence imposed on the Count TV rape conviction. The Court of Appeals vacated the upward departure sentence on Count IV and remanded for resentencing, relying on State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). See State v. McClennon, unpublished Case No. 85,584 (filed August 31, 2001).
We granted the State’s petition for review under K.S.A. 20-3018(b) to address the validity of McClennon’s upward durational departure sentence. Our inquiry is this: whether imposition of an upward durational departure sentence, under K.S.A. 2001 Supp. 21-4716, based on a court finding by a preponderance of the evidence that McClennon’s current crime was one of extreme sexual violence and that McClennon is a predatory sex offender, violates McClennon’s constitutional rights. The answer is “yes.”
We affirm the Court of Appeals. The sentence for the Count IV rape conviction is vacated, and we remand for resentencing within the presumptive range applicable to a 1-B crime. See K.S.A. 1996 Supp. 21-4704.
FACTS
On May 25, 2000, McClennon was convicted by a jury of 11 counts of rape, K.S.A. 2001 Supp. 21-3502(A)(1)(A); 5 counts of aggravated burglary, K.S.A. 21-3716; 3 counts of aggravated criminal sodomy, K.S.A. 21-3506(a)(3)(A); 4 counts of kidnapping, K.S.A. 21-3420; 3 counts of robbery, K.S.A. 21-3426; 2 counts of aggravated sexual battery, K.S.A. 21-3518; and 1 count of aggravated battery, K.S.A. 21-3414(a)(l)(A). He was sentenced on June 29, 2000. The district court selected the Count IV rape as the primary crime. The presumptive sentencing range for the Count TV rape was 772-732-692 months. The district court departed upward by doubling the maximum presumptive sentence from 772 months to 1,544 months. The district court imposed presumptive sentences on each of the other counts, then ran all 29 sentences consecutively. The strictures of the “double-double” rule, K.S.A. 2001 Supp. 21-4720(b)(4), limited the controlling sentence to 3,088 months, or 257 1/3 years.
McClennon appealed, challenging the sufficiency of the evidence supporting his convictions and his upward durational departure sentence on Count IV. His other 28 sentences, amounting to 2,722 months (more than 226 years) before the application of the ‘double-double’ rule, were not at issue. The Court of Appeals affirmed McClennon’s convictions but vacated the sentence imposed for the primary crime of rape and remanded for resentencing only as to that offense.
DISCUSSION
The district court here based its upward durational departure on four factors: (1) McClennon’s current crime of conviction was a crime of extreme sexual violence and he was a predatory sex offender; (2) McClennon’s activity showed repeated sexual assaults against citizens of his community; (3) he was a danger to the community; and (4) he was a serial rapist who could not be rehabilitated.
The State acknowledges that under Gould, the district court’s second, third, and fourth nonstatutory findings cannot be used to support the upward durational departure. The State insists, however, that the first factor may be used to support an upward durational departure sentence. According to the State, application of the first factor is limited to certain statutorily defined crimes where the defendant has at least one prior conviction for the same type of offense. The State posits that the nature of the findings here do not offend the principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), as applied by us in Gould.
The Apprendi Court held: “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.
In Gould, an upward durational departure case, we addressed the application of Apprendi to what is now K.S.A. 2001 Supp. 21-4716. The K.S.A. 2001 Supp. 21-4716 scheme for imposing upward durational departures is keyed to judicial findings based on a preponderance of the evidence. Thus, we held that the scheme violates the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution. 271 Kan. at 414.
In Gould, the district court imposed an upward durational departure sentence based in part upon its finding of additional facts under K.S.A. 2001 Supp. 21-4716(b)(2). The State distinguishes the finding here on the basis that whether the current crime of conviction is one of extreme sexual violence does not involve an additional fact beyond those found by the jury. The State adds that to the extent McClennon’s status as a predatory sex offender involves an additional fact, it is one based on recidivism, which is specifically excepted from the requirements of Apprendi.
K.S.A. 2001 Supp. 21-4716(a) says that the sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines “unless the judge finds substantial and compelling reasons to impose a departure.” Subsection (b)(2) provides that, “[sjubject to the provisions of subsection (b)(3),” the court may consider a number of factors in determining whether substantial and compelling reasons exist to support a departure. The factor relied upon by the district court here, K.S.A. 2001 Supp. 21-4716(b)(2)(F), states in pertinent part:
“(F) The defendant’s current crime of conviction is a crime of extreme sexual violence and the defendant is a predatory sex offender. As used in this subsection:
(i) ‘Crime of extreme sexual violence’ is a felony limited to the following:
(a) A crime involving a nonconsensual act of sexual intercourse or sodomy with any person.
(ii) ‘Predatory sex offender’ is an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who:
(a) Has one or more prior convictions of any crimes of extreme sexual violence. Any prior conviction used to establish the defendant as a predatory sex offender pursuant to this subsection shall also be counted in determining the criminal histoiy category.”
First, the State points out that there is no additional fact finding involved in determining whether McClennon’s current crime of conviction was one of extreme sexual violence. Rape is statutorily defined as “[sjexual intercourse with a person who does not consent to the sexual intercourse.” K.S.A. 2001 Supp. 21-3502(a)(l). A crime of extreme sexual violence is “[a] crime involving a non-consensual act of sexual intercourse or sodomy with any person.” K.S.A. 2001 Supp. 21-4716(b)(2)(F)(i)(a). By statutory definition, one who commits rape commits a crime of extreme sexual violence. See State v. Gideon, 257 Kan. 591, 625, 894 P.2d 850 (1995).
Second, the State explains that a predatory sex offender is statutorily defined as “an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who . . . [h]as one or more prior convictions of any crimes of extreme sexual violence.” K.S.A. 2001 Supp. 21-4716(b)(2)(F)(ii) (a). McClennon does not dispute the existence of such a prior conviction or convictions in his case. According to the State, Mc-Clennon’s status as a predatory sex offender implicates only the number and nature of his prior convictions, and prior convictions were specifically excluded from the demands of Apprendi.
The State’s argument, however, does not take into consideration the requirements of K.S.A. 2001 Supp. 21-4716(b)(3):
“If a factual aspect of a crime is a statutory element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is'significantly different from the usual criminal conduct captured by the aspect of the crime (Emphasis added.)
Under (b)(3), in order for the sentencing court to use a factual aspect of the crime that is also a statutory element of the crime as an aggravating factor, the criminal conduct constituting that aspect of the crime must be “significantly different” from the usual criminal conduct captured by the aspect of the crime.
Sexual intercourse and the absence of consent are elements of the crime of rape. Under K.S.A. 2001 Supp. 21-4716(b)(3), the district court may not use the fact of nonconsensual sexual intercourse to establish a “crime of extreme sexual violence” unless the nonconsensual sexual intercourse is “significantly different” than the usual criminal conduct involved in such an act. The district court made no such finding here. Even if it had, or if one were implied, it remains for the court to determine whether the non-consensual sexual intercourse involved was “significantly different” from the usual crime of rape. This conclusion is one to be drawn, under K.S.A. 2001 Supp. 21-4716, without the benefit of a jury verdict beyond a reasonable doubt. As we said in Gould, this procedure “ Is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.’ ” 271 Kan. at 413 (quoting Apprendi, 530 U.S. at 497).
Gould held the scheme for imposing upward departures embodied in K.S.A. 2001 Supp. 21-4716 unconstitutional on its face. The district court’s upward departure decision here, based on K.S.A. 2001 Supp. 21-4716(b)(2)(F), is a product of that scheme and cannot stand. We see no reason to depart from the dictates of Gould.
Finally, the State attempts to salvage the upward durational departure sentence imposed here by comparing it to a sentence imposed under K.S.A. 2001 Supp. 21-4704(j). K.S.A. 2001 Supp. 21-4704(j) requires imposition of double the maximum presumptive term for a “persistent sex offender.” We have not considered the propriety of a sentence imposed under K.S.A. 2001 Supp. 21-4704(j) in light of Apprendi and Gould, and we are not presented with the issue on the facts before us. A comparison of the two statutes is not helpful to the State’s cause and will not be undertaken here.
The decision of the Court of Appeals to vacate McClennon’s upward durational departure sentence on Count IV and remand for resentencing within the presumptive range is affirmed. | [
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|
The opinion of the court was delivered by
Davis, J.:
Passenger Janet Hathaway filed a tort action against driver Gale Liggatt for injuries she sustained in a one vehicle motorcycle accident. Liggatt’s insurer, Employers Mutual Casualty Company (EMC), denied coverage and refused to defend based upon a specific policy exclusion for a vehicle with less than four wheels. Hathaway’s garnishment action against EMC based upon a consent judgment arid Liggatt’s breach of contract action against EMC for attorney fees expended in defending Hathaway’s tort action both failed on summary judgment. The trial court granted summary judgment to EMC, concluding that the clearly expressed intent of the parties and not the reasonable expectations of the insured controlled. We agree and affirm.
Hathaway was a passenger on a three-wheeled vehicle operated by Liggatt. She was severely injured when the vehicle ran off the road. Hathaway was the owner of the vehicle. She filed suit against Liggatt for personal injuries she suffered in the single vehicle accident. EMC refused to defend the action based upon its determination that its policy of insurance covering Liggatt’s vehicle, which also happened to be a motorcycle, did not provide coverage for his use of Liggatt’s three-wheeled vehicle. Liggatt was defended under reservation of rights by an attorney retained by his homeowners insurance company.
After notice to EMC, a consent judgment was entered against Liggatt in favor of Hathaway for $676,846.44. Within the same action, Hathaway obtained a garnishment to collect her judgment against EMC, and Liggatt filed a separate breach of contract action against EMC to recover his attorney fees in defending Hathaway’s action against him. The two cases were consolidated, and the trial court entered summary judgment for EMC and dismissed Liggatt’s claim for attorney fees.
We are called upon to review the decision of the trial court in its interpretation of the policy of insurance issued by EMC to Liggatt. The interpretation of a written instrument is a question of law, and regardless of the construction given to a written instrument by the trial court, the appellate court may construe the instrument and determine its effect. Marquis v. State Farm Fire & Cos. Co., 265 Kan. 317, 324, 961 P.2d 1213 (1998). However, because we agree with the trial court, its decision and the appellant’s response identify and clarify the issues we must resolve in this opinion. For that reason we quote at length from the trial court’s memorandum decision.
Trial Court’s Ruling
The trial court ruled as follows:
“The court takes judicial notice of the policy in question. It is a standard insurance contract with endorsements changing parts of the policy. The Policy Declarations clearly provide, in large letters, that:
“ ‘COVERAGE IS PROVIDED ONLY WHERE A PREMIUM IS SHOWN’
“The continuation page of the Policy Declarations captioned ‘CYCLE DESCRIPTION/COVERAGE,’ describes a 1984 [¶] motorcycle, Id. # 1HD1EC120EY-257987, as the only vehicle covered under the policy. Each element of coverage (bodily injury liability, property damage liability, etc.) is itemized, for a total premium of $265.00.
“The base Policy is contained in form PP0001, pages 1 through and including 11. DEFINITIONS are contained on page 1 thereof and define “Your Covered Auto’ as ‘Any vehicle shown in the Declarations.’ (Paragraph J) The only change in that definition is contained in Endorsement Form PP0323. Form PP0323 is a MISCELLANEOUS TYPE VEHICLE ENDORSEMENT, consisting of 3 pages. It provides, in large type, conspicuously placed at the top of page 1:
‘THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.’
“Page 1 of this endorsement form further provides:
‘This coverage is subject to all the provisions of the policy with respect to the miscellaneous type vehicles and coverages described in the Schedule on the Declarations except as modified as follows:
No modifications are shown in that schedule of vehicles. Policy DEFINITIONS contained on page 1 of this endorsement change the definition of ‘Your Covered Auto’ as follows:
‘A. For the purpose of the coverage provided by this endorsement, “miscellaneous type vehicle” means a motor home, motorcycle or other similar type vehicle, all-terrain vehicle, dune buggy or golf cart.
‘B. tlie definition of “your covered vehicle” is replaced by the following:
‘Your covered auto’ means:
1. Any “miscellaneous type vehicle” shown in the Schedule or in the Declarations.
The only coverage defined under this endorsement for any vehicle not shown on the Declarations or Schedule relates to vehicles acquired by the Insured after inception of the policy and vehicles used as a temporary substitute for the insured vehicle while it is under repair. The accident vehicle was not being used by Insured as a substitute for his motorcycle within the meaning of that definition.
“EMC’s contractual obligation for Liability Coverage is set forth on Page 2 of the base policy. The insuring Agreement therein states:
“We will pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident. Damages include prejudgment interest awarded against the insured. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. WE HAVE NO DUTY TO DEFEND ANY SUIT OR SETTLE ANY CLAIM FOR BODILY INJURY OR PROPERTY DAMAGE NOT COVERED UNDER THIS POLICY.’ (Emphasis supplied.)’ ”
The only change made to the Insuring Agreement is contained in the Amendment or Policy Provisions form PP0156. That change simply removes the reference to prejudgment interest from the Insuring Agreement as set forth above by eliminating the second full sentence, but retains the remainder of that clause.
“The foregoing obligation of EMC for Liability Coverage is subject to the Exclusions specified on pages 2 and 3 of the base policy. The relevant Exclusion with respect to the issue in these cases is contained in paragraph B.l. on page 3, as follows:
‘B. We do not provide Liability Coverage for ownership, maintenance or use of:
1. Any motorized vehicle having fewer than four wheels.’
The only change made to the B.l. Exclusion of the base policy is contained on page 2 of the Miscellaneous Type Vehicle Endorsement form (PP0323), which is as follows:
‘B. The Exclusions Section is amended as follows:
1. Exclusion B. 1. is replaced by the following:
We do not provide Liability Coverage for the ownership, maintenance or use of any motorized vehicle having fewer than four wheels. However, this exclusion does not apply to a motorized vehicle having fewer than four wheels if it is insured for Liability Coverage under this endorsement.’ ”
The trial court had previously noted that the parties did not dispute that the motorcycle involved in the accident was not owned by Liggatt and that the vehicle was not a replacement or substitute vehicle under Liggatt’s policy with EMC. The court additionally noted that “[t]here is no question that the accident vehicle had fewer than four wheels.” The question for the trial court was whether the accident “arose out of the ownership, maintenance or use of a motorized vehicle having fewer than four wheels which was excluded from coverage under the terms of EMC’s policy.”
Hathaway’s Response
Hathaway acknowledged that standing alone, the B.l. exclusion is unambiguous. However, she asserts that the vehicle described in the declarations is a motorcycle and the exclusion becomes patently ambiguous because it is in conflict with the specifically described vehicle in the declarations and is, therefore, void. Her contention appears to be that the policy would have covered a four-wheel vehicle and that because coverage extends to such four-wheel vehicles, it would be reasonable to assume that coverage would also extend to a vehicle with fewer than four wheels. She further contends that because of excessive amendments to the base policy, including amendments which are not particularly relevant to the issue in this case, the policy as a whole is incomprehensible.
Trial Court’s Response and Decision
In disagreeing with Hathaway’s response, the trial court noted that the only way to reach the conclusion urged by Hathaway would be to completely read the exclusion for the use of vehicles with fewer than four wheels out of the policy. The trial court further concluded:
“The court does not believe that any particular expertise is required to understand that amendment provisions contained in the endorsements to a policy, under like headings to provisions in the base policy being amended, are in fact limited in scope to the provision so amended. Headings in the subject policy are clearly marked in capital letters. As previously noted, the only amendment to the pertinent exclusion is contained in the Miscellaneous Type Vehicle Endorsement and it clearly sets forth that it changes the policy and directs the Insured to read it carefully.
“Here, the intent of EMC and Insured is clear. The policy was to provide liability coverage to Insured for the operation of his two wheeled motorcycle. Exclusion B.l. as amended in the Miscellaneous Type Vehicle Endorsement, clearly excepts motorized vehicles having fewer than four wheels from Exclusion B.l. if it is insured for such coverage under the Endorsement. Even though the policy is fragmented, it is nonetheless clear from a reading of the policy as a whole, that there was no intent to provide coverage to motorized vehicles having fewer than four wheels owned by strangers to the contract unless used by the Insured as a temporary substitute while his insured vehicle is under repair. The language of an exclusionary clause in an insurance policy must be afforded its plain, ordinary meaning. Courts should not strain to create an ambiguity where, in common sense, there is none. Newton v. Nicholas, 20 Kan. App. 2d 335, Syl. 3. Kansas law does not require motor vehicle insurance policies to cover the use of any vehicle which is not described in the policy, including borrowed vehicles. Liability coverage is not required to follow a named person from vehicle to vehicle. Instead, policies are required to designate those vehicles that are covered, and all operators of the designated vehicle are required to be covered, as long as they have the owner’s consent to operate the vehicle. K.S.A. 40-3107(a) and (b).”
Based upon the above conclusions and further authority advanced by the trial court, the court concluded that EMC had no duty to defend and/or indemnify Liggatt against the legal proceedings brought by Hathaway. The accident was not a covered occurrence but was clearly and unambiguously excluded from coverage under EMC’s policy.
On appeal, Hathaway and Liggatt identify 14 issues, all of which are either directly or indirectly based upon their contention that the policy as a whole is ambiguous, a contention which was rejected by the trial court. We address the issues raised but emphasize that we agree with the trial court’s opinion that the insurance contract in this case is not ambiguous.
Ambiguity
Hathaway argues the trial court erred in finding that his insurance contract with EMC is not ambiguous. “An appellate court’s review, when construing a written contract on uncontested facts, is de novo. [Citation omitted.]” Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1010, 894 P.2d 260 (1995). Whether a written instrument is ambiguous is a matter of law subject to de novo review. See City of Topeka v. Watertower Place Dev. Group, 265 Kan. 148, 152-53, 959 P.2d 894 (1998).
The primary rule in interpreting written contracts is to ascertain the intent of the parties. If the terms of the contract are clear, there is no room for rules of construction, and the intent of the parties is determined from the contract itself. See Marquis, 265 Kan. at 324. A party to a contract has a duty to read the contract before signing it, and the failure to read a contract does not make the contract less binding. Miner v. Farm Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598, 609, 841 P.2d 1093 (1992), rev. denied 252 Kan. 1092 (1993). Ambiguity exists if the contract contains provisions or language of doubtful or conflicting meaning. Marquis, 265 Kan. at 324. Put another way: “Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.” Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992). Before a contract is determined to be ambiguous, the language must be given a fair, reasonable, and practical construction. Marquis, 265 Kan. at 324. The court in First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998), described the test as requiring a determination of “not what the insurer intends to language to mean, but what a reasonably prudent insured would understand the language to mean.”
If the meaning is ambiguous, the contract must be construed against the drafter. Shelter Mut. Ins. Co. v. Williams, 248 Kan. 17, 23, 804 P.2d 1374 (1991) (“In construing contracts, an ambiguity in the language of the contract will be strictly construed against the party who drafted the provision.”). Alternatively, a finding of ambiguity was described as follows: “If the meaning is not stated clearly, and a reasonable person in the insured’s position would have understood the words of the policy to mean something other than what the insurer intended, that understanding will control.” Penalosa Co-op Exchange v. Farmland Mut. Ins. Co., 14 Kan. App. 2d 321, 324, 789 P.2d 1196, rev. denied 246 Kan. 768 (1990).
EMC’s contract with Liggatt begins with two pages of policy declarations. The policy covers Liggatt’s 1984 Honda motorcycle, identification number 1HD1EC120EY257987. The policy declarations incorporate eight forms and endorsements.
The main document incorporated is the base policy, PP 00 01. Coverage is set forth in paragraph A:
“A. We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident. Damages include prejudgment interest awarded against the ‘insured.’ We will settle or defend, as we consider appropriate, any claim or suit asking for these damages. In addition to our limit of liability, we will pay all defense costs we incur. Our duty to settle or defend ends when our limit of liability for this coverage has been exhausted. We have no duty to defend any suit or settle any claim for ‘bodily injury’ or ‘property damage’ not covered under this policy.”
There are a number of exclusions to the basic coverage found in the base policy, including:
“B. We do not provide Liability Coverage for the ownership, maintenance or use of:
“1. Any motorized vehicle having fewer than four wheels.”
The above language is amended by form PP 03 23, which has two headings. The first heading reads as follows: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” The second heading reads as follows: “MISCELLANEOUS TYPE VEHICLE ENDORSEMENT.” The amendment is as follows:
“B. The Exclusions Section is amended as follows:
1. Exclusion B.l. is replaced by the following:
We do not provide Liability Coverage for the ownership, maintenance or use of any motorized vehicle having fewer than four wheels. However, this exclusion (B.l.) does not apply to a motorized vehicle having fewer than four wheels if it is insured for Liability Coverage under this endorsement.”
The above language excludes coverage from loss arising out of an accident involving a vehicle with fewer than four wheels unless that vehicle is the one specifically insured by the insurance contract.
The accident in this case did not involve the vehicle specifically named in the insurance policy. Further, the vehicle involved in the accident had fewer than four wheels.
Kansas statutes do not require liability coverage to follow a named person from vehicle to vehicle. See K.S.A. 40-3107(a),(b). Hathaway concedes this point. Kansas law requires a policy of motor vehicle liability insurance to identify the particular vehicles covered, K.S.A. 40-3107(a), and to designate the owner and any other person using the identified vehicles with express or implied consent, K.S.A. 40-3107(b). The coverage for Hathaway’s injury is purely a matter of contract.
Hathaway fails to make a credible argument on appeal that the contract is ambiguous. As the trial court pointed out, “[t]o reach the conclusion urged by [Hathaway], a person would have to completely read the exclusion for the use of vehicles with fewer than four wheels out of the policy.” Hathaway fails to suggest an alternative, reasonable interpretation of the contract that makes EMC hable for the injuries in this case.
Unless there is a finding that an insurance policy is ambiguous, the reasonable expectations doctrine does not permit the court to reform the unambiguous meaning of the contract. “When an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made.” Catholic Diocese of Dodge City, 251 Kan. at 693.
Hathaway attempts to point out ambiguity in the exclusion, but fails because it is not a reasonable interpretation of the exclusion. Hathaway argues the ordinary Kansan could interpret the amendment as follows: “However, this exclusion (B.l.) does not apply to a motorized vehicle having fewer than four wheels if it a motorcycle is insured for Liability Coverage under this [MISCELLANEOUS TYPE VEHICLE] endorsement.” Read in this way, the under four-wheel exclusion is always inapplicable if the specifically named vehicle itself has fewer than four wheels. Such an interpretation is unreasonable.
Liggatt argues the ordinary Kansan would simply strike out “it.” However, “it” refers to the motor vehicle excluded from coverage in the first sentence. The second sentence which begins with “however” is a limited exception to the general exclusion, and only applies if the vehicle specifically named in tire policy is the vehicle involved in the accident. Hathaway argues the ordinary Kansan would ignore “it.” Read in this way, the exception to the general exclusion becomes unlimited and eviscerates the exclusion. The contract must first be given a fair, reasonable, and practical construction. See Marquis, 265 Kan. at 324. Hathaway’s suggested reading of the amended exclusion is unreasonable and therefore cannot provide a basis for concluding that the exclusion is ambiguous.
Absurd Results
Hathaway argues that the trial court’s interpretation of the contract “leads to absurd results,” because nonowned motorcycles are excluded, while nonowned vehicles with four wheels are covered. Hathaway cites Regional Bank of Colo. v. St. Paul Fire & Marine, 35 F.3d 494, 498 (10th Cir. 1994), and this court’s summary of the Regional Bank decision in Associated Wholesale Grocers, Inc. v. Americold Corp, 261 Kan. 806, 825, 934 P.2d 65 (1997). Regional Bank can be distinguished from the present case. The Regional Bank court first established that Colorado law would accept the application of a version of the reasonable expectations doctrine regardless of ambiguity. Regional Bank, 35 F.3d at 497 (“We believe that the Colorado Supreme Court would apply the rule of reasonable expectations in construing the terms of the policy here, regardless of whether or not the policy was found to be ambiguous.”). Hathaway concludes without explanation that the ambiguity in this case is similar to that found in Regional Bank. Her argument fails to acknowledge that no ambiguity exists in the policy exclusion here, whereas ambiguity existed in Regional Bank.
“While a reasonable person of ordinary intelligence might well understand carbon monoxide is a pollutant when it is emitted in an industrial or environmental setting, an ordinary policyholder would not reasonably characterize carbon monoxide emitted from a residential heater which malfunctioned as a pollution/ It seems far more reasonable that a policyholder would understand the exclusion as being limited to irritants and contaminants commonly thought of as pollution and not as applying to every possible irritant or contaminant imaginable.” 35 F.3d at 498.
Thus, Regional Bank fails to support Liggatt’s argument.
Hathaway argues the definition of “insured,” which is also amended by form PP 03 23, is beyond the comprehension of an ordinary Kansan. This argument misses the point. Regardless of the definition of “insured,” the policy excludes coverage in cases of nonowned vehicles with fewer than four wheels. Hathaway argues it is absurd to suggest an ordinary Kansas would look up the word “insured” in the insurance policy. However, Hathaway fails to make clear what is absurd about reading the exclusions and the amendments affecting the exclusion section in order to determine liability.
To support her argument, Hathaway cites Ferguson v. Phoenix Assurance Co, 189 Kan. 459, 370 P.2d 379 (1962), for the proposition that an “exclusion hidden in a definition is unenforceable.” The contrast between Ferguson and this present case is instructive. As Ferguson advises, an insurer should specify policy exclusions within a section of the policy clearly marked as an exclusion section. See 189 Kan. at 471. The exclusion at issue in the present case was not hidden but was incorporated under the exclusion section.
Reasonable Expectations and Reformation
Hathaway argues the doctrine of reasonable expectations should make EMC hable for the accident causing her injuries. Refore applying the doctrine of reasonable expectations there must be a finding that the written instrument being interpreted is ambiguous. The trial court was correct in citing Penalosa for the proposition that ambiguity is a condition precedent to the application of the reasonable expectations doctrine. “If there is no uncertainty about the meaning of the policy, it will be enforced as written.” 14 Kan. App. 2d at 323. Assuming ambiguity, Penalosa provides two alternatives for interpreting the ambiguous contract: (1) A liberal construction in a way most favorable to the insured and (2) an interpretation consistent with the reasonable expectations of the insured. 14 Kan. App. 2d at 324. Consistent with the trial court’s decision, the reasonable expectations of a party to a contract cannot be used to modify unambiguous contractual provisions.
Hathaway argues that a contract may be reformed to meet the reasonable expectations of the insured. However, Hathaway fails to cite any facts which would support reformation. Contract reformation is an equitable remedy available to correct mutual mistakes of fact or fraud. Black’s Law Dictionary 1285 (7th ed. 1999); see Conner v. Koch Oil Co., 245 Kan. 250, 254, 777 P.2d 821 (1989).
The American Jurisprudence encyclopedia describes the remedy of reformation as follows:
“ ‘Reformation’ is that remedy by means of which a written instrument is made or construed to express or conform to the real intention of the parties, when some error or mistake has been committed. A reformation occurs when a court determines an instrument does not reflect the terms intended by the parties to it and then revises the terms written in the instrument to reflect the intent of the parties. Reformation is based on the premise that the parties had reached an agreement concerning the instrument, but while reducing their agreement to written form, and as the result of mutual mistake or fraud, some provision or language was omitted from, inserted, or incorrectly stated in the instrument intended to be the expression of the actual agreement of the parties. . . .
“In granting reformation, a court merely revises a writing to express the parties’ prior agreement. Reformation recognizes that for one reason or another, written contracts do not always accurately reflect the parties’ antecedent agreement. In reforming an instrument, a court does not change the agreement between he parties, but changes the drafted instrument to conform to the real agreement. Courts are not at liberty, under the guise of reformation, to rewrite the parties’ agreement and foist upon the parties a contract they never made. Accordingly, by reformation, a court is not making a new contract but, rather, gives effect to the contract which the parties in fact made but which by reason of mistake was not expressed in the writing executed by them.” 66 Am. Jur. 2d, Reformation of Instruments § 1, pp. 226-27.
There is no evidence to suggest that the contract of insurance between EMC and Liggatt was the result of mutual mistake or fraud. Reformation in accordance with the reasonable expectations of the insured is not a remedy available under the facts of this case.
fury Trial
Hathaway argues the district court erred in refusing to grant a jury trial. It is established law in Kansas that the interpretation of a written instrument is generally a question of law exclusively for the court and not a question for the jury. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998).
Hathaway also argues the trial court failed to use an advisory jury. The decision whether to use an advisoiy jury is within the discretion of the court. State ex rel. Miller v. Richardson, 229 Kan. 234, 241, 623 P.2d 1317 (1981).
The Kansas Rules of Civil Procedure allow for the court to use advisory juries:
“Advisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisoiy juiy or (except in actions against the state when a statute of the state provides for trial without a jury) the court, with the consent of all parties, may order a trial with a jury whose verdict shall have the same effect as if trial by jury had been a matter of right.” K.S.A. 60-239(c).
Hathaway argues the trial court erred in failing to use an advisory juiy, relying on what he claims to be the great educational disparity between lawyers and judges on the one hand and ordinary Kansans on the other hand. Hathaway rests her argument on the statistics she attempted to introduce at trial showing the educational level of the typical Kansan. She argues an advisoiy jury would better reflect the ordinary Kansan.
Hathaway s argument ignores established law in this state that the proper interpretation of a contract is a question of law for this court to decide. Moreover, we have concluded that there is no ambiguity in the applicable policy exclusion. Thus, there is no reason to believe an ordinary Kansan would have interpreted the clear language of the policy any differently than a judge would have interpreted the same language. The trial court did not abuse its discretion in denying Hathaway s request for an advisory juiy.
Exclusion of Other Insurance Policy Provisions
Hathaway argues the trial court erred in failing to consider the language used by another insurance company, viz., the Dairyland policy which did not limit coverage to four-wheeled motor vehicles. Had Liggatt been covered by the Dairyland policy, Hathaway s injuries would have been covered. Conceding EMC was not required by statute to offer coverage for the accident that occurred in this case, Hathaway suggests EMC had a duty to put its insured on notice about the lack of coverage. Hathaway asks this court to consider K.S.A. 2001 Supp. 50-639(c), which is a consumer protection law. K.S.A. 2001 Supp. 50-639(c) allows a supplier to limit the supplier’s implied warranty of merchantability and fitness for a particular purpose only after specifically informing the consumer of any defects. Hathaway argues the same requirement should be applied to K.S.A. 40-284.
We have determined that the trial court was correct in concluding that the policy before this court is not ambiguous. It necessarily follows that the clear language of the exclusion is to be enforced as written. Hathaway concedes that the mandatory insurance coverage laws of this state do not require coverage for claims such as made in this case. It is therefore unclear how a contract excluding such coverage could be defective under 50-639(c) of the Consumer Protection Act. Moreover, the exclusion applicable in this case, given the only reasonable interpretation available, clearly notified Liggatt that EMC did not cover the injuries sustained by Hathaway. The trial court did not err in excluding other insurance policies.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by Anthony G. Muriithi, a noncitizen, in which defendant’s criminal convictions made him deportable. Muriithi appeals from the district court’s denial of his motion to withdraw plea and set aside conviction. See State v. Solomon, 257 Kan. 212, Syl. ¶ 1, 891 P.2d 407 (1995.) The court transferred the appeal from the Court of Appeals. K.S.A. 20-3018(c).
Muriithi raises the following issues in this appeal: whether counsel’s failure to advise Muriithi that he would be deportable as a consequence of his convictions resulted in manifest injustice, whether the trial judge’s failure to advise Muriithi of the immigration consequences of his convictions resulted in manifest injustice, and whether Muriithi’s pleas were unknowing and involuntary due to the trial judge’s failing to advise defendant that he was waiving constitutional rights.
On August 20, 1998, Muriithi pled no contest to one count of domestic battery and one count of endangering a child. The State dismissed two counts of batteiy, two counts of endangering a child, and one count of intimidation of a witness and recommended probation. One count of endangering a child involved 16-day-old Nathaniel Muriithi.
Muriithi stipulated to the facts contained in the affidavit, which was filed with the complaint. According to the affidavit, Muriithi went to an apartment on the evening of June 30,1998, where there were three small sleeping children with Dena Yoakum and Sherry Tunstall in one room. Muriithi argued with Yoakum and slapped her. Muriithi lifted and swung Tunstall’s 2-year-old girl by her arm. When Tunstall tried to get the child away from him, Muriithi slapped and pushed her. When Tunstall tried to call 911, Muriithi struggled with her, hit her with the telephone, pulled her hair, and grabbed her wrist.
At the plea proceeding, the trial court advised Muriithi that he had “an absolute right to a trial.” The trial court also advised Muriithi that at a trial the State would have to prove him guilty beyond a reasonable doubt, that he would have the right to confront wit nesses and to subpoena witnesses, that he would have the right to testify but could not be compelled to do so, and that he would have the right to appeal from a guilty verdict.
In addition, Muriithi was informed that the domestic battery count was punishable by a maximum penalty of 6 months in jail and that the endangering a child count was punishable by up to 1 year in jail. Muriithi responded that he understood the possible penalties.
When Muriithi arrived for the plea proceeding without counsel, the trial court suggested that the defendant talk to one of the lawyers in the misdemeanor defense group and stated that counsel would be appointed for him. At the plea proceeding and sentencing, Muriithi was represented by counsel.
After asking that Muriithi be placed on probation so that he could continue supporting his children and pay costs and fees, counsel stated: “To address the question of fees, Judge, as you know, I spoke to Mr. Muriithi very briefly regarding this case and I would ask that you consider either waiving the attorney’s fees or at least paroling [sic] them down since, really, I really didn’t have to do very much, Judge.” The sentencing judge placed Muriithi on supervised probation for 12 months.
In March 2000, deportation proceedings against Muriithi, which were based in part on his conviction for domestic battery, concluded with an order that he be removed from the United States to Kenya. A provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) makes any alien deportable if convicted in the United States of a crime of domestic violence. See 8 U.S.C. § 1227(a)(2)(E)(i) (2000). His deportation appeal was dismissed in September 2000. The other basis for deportation, as recited in the decision of the Board of Immigration Appeals, was that he was admitted to the United States as a non-immigrant student to attend Washburn University beginning in the fall of 1995, but he failed to attend Washburn through December 1999. In his reply brief, Muriithi’s appellate counsel asserts that he could have cured his non-student status and he might have avoided deportation if it had not been for the conviction of domestic violence.
In March 2001, the trial judge heard evidence on Muriithi’s motion to withdraw his pleas and set aside his convictions. Muriithi testified that, if he had known at the time of the plea proceeding that a conviction of domestic violence would make him deportable, he would not have pled nolo contendere.
At the hearing on Muriithi’s motion to withdraw his pleas and set aside his convictions, defense counsel testified that at the time of Muriithi’s pleas she was one of a group of four attorneys who contracted with Shawnee County for a set fee to handle all of the misdemeanor appointments. She had no recollection of representing Muriithi, and she did not recognize him. She testified that her practice, when told by a client of immigration status, was to advise the defendant to have his or her case set for trial in order to have time to consult an immigration attorney about any effect a conviction might have.
Muriithi’s appellate counsel contends that Muriithi did not receive effective assistance of counsel, that as a result Muriithi’s pleas were neither knowing nor voluntary and, hence, unjust, and that his being made deportable as a result of those convictions was manifestly unjust. In addition to the contention that counsel should have advised Muriithi that his convictions would make him deportable, Muriithi also asserts that counsel failed to advise him that a nolo contendere plea results in a conviction and involves waiving constitutional rights.
The court may permit a defendant to withdraw his or her plea of nolo contendere after sentencing if doing so will correct a manifest injustice. K.S.A. 2001 Supp. 22-3210(d). The decision to deny a motion to withdraw a plea lies within the discretion of the trial court, and the trial court’s decision will not be disturbed on appeal absent a showing of abuse of discretion. State v. Shaw, 259 Kan. 3, Syl. ¶ 2, 910 P.2d 809 (1996). The issue of ineffective assistance of counsel involves mixed questions of fact and law, which are subject to de novo review. State v. Orr, 262 Kan. 312, 321, 940 P.2d 42 (1997).
In Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), the court adopted the holdings of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 reh. denied 467 U.S. 1267 (1984), as the standard to be used in determining a claim of ineffective assistance of counsel. In Hill v. Lockhart, 474 U.S. 52, 58, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985), the Supreme Court held “that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Elaborating on the standard, the Supreme Court stated:
“In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973)], and McMann v. Richardson, [397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)]. The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 58-59.
In Tollett, the Supreme Court expressed the view that
“[t]he principal value of counsel to the accused in a criminal prosecution often does not lie in counsel’s ability to recite a list of possible defenses in the abstract, nor in his ability, if time permitted, to amass a large quantum of factual data and inform the defendant of it. Counsel’s concern is the faithful representation of the interest of his client, and such representation frequently involves highly practical considerations as well as specialized knowledge of the law.” 411 U.S. at 267-68.
Counsers failure to advise of deportability consequence. Muriithi’s counsel met him for the first time on the day he entered his nolo contendere pleas. They talked for approximately 5 to 10 minutes before the plea and sentencing proceeding began. They did not talk about the charges against him. He was not shown the affidavit that had been filed with the complaint. During the plea proceeding, Muriithi’s counsel agreed to stipulate to the facts contained in the affidavit. Counsel advised Muriithi to plead nolo contendere to the charges of domestic battery and child endangerment. Counsel did not ask Muriithi whether he was a United States citizen. She did not advise him that he would be made deportable by entering the nolo contendere pleas. Muriithi was not aware that he would be made deportable.
To set aside a plea of nolo contendere on the ground that ineffective assistance of counsel rendered the plea involuntary and the result was manifestly unjust, a defendant must show that counsel’s performance fell below the standard of reasonableness and that there was a reasonable probability that, but for counsel’s errors, the defendant would not have entered the plea and would have insisted on going to trial. State v. Solomon, 257 Kan. 212, Syl. ¶ 6. With regard to the entry of a nolo contendere plea, defense counsel has an obligation to advise the defendant as to the range of permissible penalties and to discuss the possible choices available to the defendant. 257 Kan. 212, Syl. ¶ 7. Muriithi contends that when a defendant is not a citizen of the United States, defense counsel also has an obligation to advise the defendant of any adverse effect the conviction might have on his or her immigration status.
Muriithi cites INS v. St. Cyr, 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001), for the proposition that reasonably competent counsel would have advised him that the conviction would make him deportable. The narrow issue in St. Cyr is not related to the present case. The opinion in St. Cyr does contain expressions of the Supreme Court’s view of counsel’s role in criminal proceedings that implicate immigration status, but it is not helpful here. Those comments were made in the context of the narrow issue in St. Cyr which was whether § 212(c) of the Immigration and Nationality Act of 1952, which gave the United States Attorney General discretion to waive deportation, remained effective after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and IIRIRA for immigrants made deportable before enactment of the two 1996 acts. See 8 U.S.C. § 1101 et seq. (2000); 8 U.S.C. § 1182 (2000). St. Cyr, unlike Muriithi, knew that his plea of guilty in the state court made him deportable. He was relying on the waiver provision in § 212(c). The Supreme Court concluded that the discretionary waiver provision remained available to that certain class of defendants. The Court gave great weight to the “significant and manifest” potential for unfairness in cutting off the possibility of waiver: “Relying upon settled practice, the advice of counsel, and perhaps even assurances in open court that the entry of the plea would not foreclose § 212(c) relief, a great number of defendants . . . agreed to plead guilty.” 533 U.S. at 323.
Muriithi argues that there are other jurisdictions that recognize the responsibility of counsel to advise alien defendants when they will be made deportable by a conviction. The cases Muriithi cites as holding counsel responsible for advising a defendant of immigration consequences are United States v. Corona-Maldonado, 46 F. Supp. 2d 1171 (D. Kan. 1999); People v. Pozo, 746 P.2d 523 (Colo. 1987); and Daley v. State, 61 Md. App. 486, 487 A.2d 320 (1985). The lessons taught by those cases are not altogether favorable to Muriithi’s position. Muriithi concedes, however, that courts in some jurisdictions have concluded that counsel’s failing to advise a defendant that he or she will be made deportable will not amount to deprivation of the Sixth Amendment right to the effective assistance of counsel.
In Corona-Maldonado, before entering a guilty plea, the defendant made specific inquiry of his attorney about the possibility of being deported for the charged offense. Defense counsel told the defendant that it was not a removable offense and that he would not be returned to Mexico following his release from prison. The court noted that
“[i]t is well settled in the Tenth Circuit that collateral consequences, which are insufficient to support an ineffective assistance of counsel claim, include situations where a defense attorney fails to advise his client of the possibility of deportation. See Varela [v. Kaiser], 976 F.2d [1357,] at 1358 [10th Cir. 1992)” 46 F. Supp. 2d at 1173.
The court, however, distinguished the situation in which a defendant malees specific inquiry about possible deportation and is incorrectly assured that he or she would not be deported based on the conviction. 46 F. Supp. 2d at 1173. It found that the holding in Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985), was sound, where the Eleventh Circuit Court of Appeals
“held that when a defendant is incorrectly told that deportation would not occur, an ineffective assistance of counsel claim may be present. Downs-Morgan, 765 F.2d at 1541. The court refused to hold that such misstatements necessarily constituted ineffective assistance of counsel. Id. Rather, the court held that a claim may exist and remanded the case for an evidentiary hearing. Id.” 46 F. Supp. 2d at 1173.
Following Downs-Morgan, the federal district court in the District of Kansas held: “Although an attorney’s failure to inform his or her client about the possibility of being deported may not amount to ineffective assistance of counsel, providing incorrect information about being deported following specific inquiry may render the defendant’s plea involuntary.” 46 F. Supp. 2d at 1173. Noting that Corona-Maldonado chose to plead guilty “[o]nly after being informed that he would not be deported,” the court set aside his guilty plea “as it was entered involuntarily.” 46 F. Supp. 2d at 1173-74.
There is no claim in the present case that Muriithi made specific inquiry of his defense counsel about being deported if he pled.
In Pozo, Jose Borcella Pozo pled guilty to second-degree sexual assault and to escape. Pozo’s counsel did not discuss with him the possible deportation consequences of the convictions, and Pozo was not aware that he would be made deportable. The trial court concluded that defense counsel had no duty to advise an alien client of possible deportation consequences and denied Pozo’s motion to withdraw his plea. The Court of Appeals concluded that counsel had a duty to advise the client and reversed on the ground that Pozo’s counsel breached his duty, thereby denying effective assistance of counsel to his client. Unlike the lower courts, the Colorado Supreme Court was “not prepared” to state its position in absolute terms. 746 P.2d at 527. The majority believed “that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to critical phases of such proceedings.” 746 P.2d at 529. The majority held: “The determination of whether the failure to investigate [deportation] consequences [of a guilty plea] constitutes ineffective assistance of counsel [depends] upon whether the attorney had sufficient information to form a reasonable belief that client was in fact an alien.” 746 P.2d at 529. The majority concluded that the determinations critical to the disposition of Pozo’s claim of ineffective assistance of counsel — whether his counsel had reason to know before the plea was entered that Pozo was an alien.and whether counsel’s failing to discuss deportation consequences prejudiced Pozo — remained to be made. Thus, the judgment of the Court of Appeals was reversed and the matter remanded to the trial court for further proceedings. 746 P.2d at 529-30.
Muriithi is not claiming in the present case that determinations critical to the disposition of his claim of ineffective assistance of counsel remain to be made.
In Daley, the defendant pled guilty to possession of marijuana. When deportation proceedings were initiated against him after he reentered the country several years after the conviction, he sought to withdraw his plea on the ground that counsel failed to inform him of the possibility of deportation. The trial court denied his motion, and the Court of Special Appeals affirmed primarily because the record did not show that Daley s attorney knew or should have known that he was an alien. 61 Md. App. at 487, 490. In addition, Daley admitted that he knew, even though not told by counsel, that he might be subject to deportation if he failed to obey all laws.
Muriithi contends that there is no question in the present case that his counsel knew or should have known that he was an alien. We disagree. There were two separate proceedings before the court on August 20, 1998. During the proceedings prior to Muriithi’s plea proceeding, the trial court asked Muriithi, ‘Where are you from?”, and Muriithi answered, “Kenya.” The trial court then asked, “Oh, you are from Kenya?”, and Muriithi answered, “Yes.” This exchange was not a basis for concluding that counsel knew he was an alien because Muriithi did not mention citizenship. Moreover, it may not be concluded from the record that the courtroom exchange should have alerted defense counsel to make her own inquiry about Muriithi’s citizenship. Although counsel was present in the courtroom, she had not yet been appointed as Muriithi’s counsel or talked to him. We cannot tell from the record whether counsel overheard the trial court’s question and Muriithi’s response. The State correctly notes that defense counsel did not necessarily hear the exchange between the trial judge and Muriithi about where he was from. It cannot be reasonably inferred from the “Kenya exchange” that defense counsel was in position to hear what defendant said. The record does not show that Muriithi’s counsel knew or should have known that he was an alien. Absent such showing, Muriithi5s counsel had no duty to investigate Muriithi’s immigration status.
With regard to Muriithi’s independent knowledge of immigration issues, he testified that he did not know that he might be deported for a domestic battery conviction and he did not know enough to ask whether there was any possibility that he would be made deportable. He did, however, know he was not a citizen and never conveyed that fact to his counsel. If not specifically aware of the immigration consequences, he was aware of his immigration status and should have known that a criminal violation could impact his status in this country.
With regard to prejudice, Muriithi was asked, “If you had known at that time that entering a plea of no contest could subject you to deportation, would you still plead no contest today?” Muriithi answered, “No, I would not.” The State urges the court, on the subject of prejudice, not to lose sight of the fact that were Muriithi to be tried it would be on seven counts rather than two. The State would also have the court note that Muriithi’s deportation was not based solely on his convictions. The decision of the Board of Immigration Appeals shows that in addition to being charged with a conviction of domestic battery he was charged with violating conditions of his nonimmigrant student status by failing to attend Washburn from the fall semester 1995 through December 3,1999. There is nothing in the decision to indicate that Muriithi offered any defense to the charge of violating his nonimmigrant student status.
Muriithi relies on Corona-Maldonado, Pozo, and Daley, which would entertain a Sixth Amendment claim for failing to advise of immigration consequences in certain circumstances. He concedes that courts in some jurisdictions have concluded that counsel’s failing to advise a defendant that he or she will be made deportable will not amount to deprivation of the Sixth Amendment right to the effective assistance of counsel.
In fact, the general rule seems to be that deportation consequences are considered a collateral consequence of a criminal proceeding. In Santos v. Kolb, 880 F.2d 941, 944 (7th Cir. 1989), cert. denied, 493 U.S. 1059 (1990), the court polled several federal Circuit Courts of Appeals:
“Various circuits have addressed the issue of failure of counsel to inform an accused of the likely deportation consequences arising out of a guilty plea, and have determined that deportation is a collateral consequence of the criminal proceeding and therefore no ineffective assistance of counsel was found. United States v. Yearwood, 863 F.2d 6 (4th Cir. 1988); United States v. Campbell, 778 F.2d 764 (11th Cir. 1985); United States v. Gavilan, 761 F.2d 226 (5th Cir. 1985); United States v. Santelises, 509 F.2d 703 (2d Cir. 1975). But see Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).” 880 F. 2d at 944.
The Seventh Circuit Court of Appeals concluded: “The failure of petitioner’s counsel to inform him of the immigration consequences of his guilty plea, however unfortunate it might be, simply does not deprive petitioner of the effective assistance of counsel guaranteed by the Constitution.” 880 F. 2d at 945. In the more recent case of Varela v. Kaiser, 976 F. 2d 1357, 1358 (10th Cir. 1992), the Tenth Circuit Court of Appeals stated:
“The circuits that have addressed the issue of failure of counsel to inform an accused of the likely deportation consequences arising out of a guilty plea have all held that deportation is a collateral consequence of the criminal proceeding and therefore the failure to advise does not amount to ineffective assistance of counsel.”
In addition to Santos and the cases cited in it, the Tenth Circuit cited United States v. George, 869 F. 2d 333 (7th Cir. 1989), and United States v. DeFreitas, 865 F. 2d 80 (4th Cir. 1989), as their authority for that statement. States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented. Roe v. Flores-Ortega, 528 U.S. 470, 479, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000). Neither the legislature nor the courts of this state have shown any inclination to deviate from the case-by-case reasonableness standard of Strickland and Chamberlain. We conclude that here the failure to advise Muriithi of the deportation consequences does not amount to ineffective assistance of counsel, rendering his plea manifestly unjust.
Totality of the circumstances. The voluntariness of a plea can be determined only by considering all of the relevant circumstances surrounding it. Brady v. United States, 397 U.S. 742, 749, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). Muriithi brings to the court’s attention circumstances in addition to the lack of information on deportation. He asserts that counsel failed to advise him that a nolo contendere plea would result in a conviction. Counsel testified that she has no recollection of representing Muriithi. She described her custom:
“I would have explained to him the difference between a guilty plea, a no contest plea and an Alford plea and make sure that he understood what the difference was and the fact whether he pled guilty or no contest that he would ultimately be found guilty on a no contest plea.”
Muriithi contends that he was not told that by pleading nolo contendere he was admitting the factual basis for a finding of guilt. In addition, Muriithi stated several times during his hearing testimony that he did not understand that his pleas would result in convictions. In response to the question “And do you feel that you should have been advised about deportation coiiséquences?”, he said, “Yes, because I should have been told I was being convicted.” He further stated that he did not know that he “was getting convicted,” and that he thought probation was the same as diversion. Examination of the transcripts of the plea proceeding and the proceedings before the plea proceeding reveals no mention of Muriithi’s being convicted and no explanation of probation. Interestingly, Muriithi knew the intricacies of diversion but not the effect of a nolo contendere plea or probation.
Muriithi contends that he was not told that his pleas would involve waiving constitutional rights. The trial court advised Muriithi of the following rights, and Muriithi stated that he understood them: an absolute right to a trial, at which the State must prove his guilt beyond a reasonable doubt, at which he would have the right to confront and cross-examine the State’s witnesses, at which he would have the right to subpoena witnesses, and at which he would have a right to testify but could not be compelled to do so. He was also advised of the penalty for the two charges to which he pled. Muriithi was not advised that by pleading nolo contendere he would be waiving his trial rights. However, that obviously was the purpose of accepting the State’s offer and entering a plea. We cannot say the trial court abused its discretion based upon counsel’s representation or upon the totality of the circumstances.
Trial judge’s failure to advise of immigration consequences. All persons within the United States, including aliens, are protected from the deprivation of life, liberty, or property without due process. Mathews v. Diaz, 426 U.S. 67, 77, 48 L. Ed. 2d 478, 96 S. Ct. 1883 (1976). Muriithi argues that his due process rights were violated during the plea proceeding when the trial court did not inform him that he would be made deportable.
K.S.A. 2001 Supp. 22-3210 “embodies the due process requirements as interpreted by the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).” See Noble v. State, 240 Kan. 162, 163, 727 P.2d 473 (1986). With regard to pleas of guilty or nolo contendere to misdemeanor charges, the statutes provide only that a plea may be accepted when the court is satisfied that there is a factual basis for the plea and the court may allow the defendant to appear and plead by counsel. K.S.A. 2001 Supp. 22-3210(a)(4) and (c). In felony cases, the trial court must inform “the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.” K.S.A. 2001 Supp. 22-3210(a)(2). It is not apparent from the case law that Kansas courts distinguish between felony and other cases for requiring advice of plea consequences. See, e.g., City of Ottawa v. Lester, 16 Kan. App. 2d 244, 822 P.2d 72 (1991) (DUI).
Kansas courts’ application of the requirement of advising of plea consequences distinguishes between direct penal consequences and collateral consequences. In Bussell v. State, 25 Kan. App. 2d 424, 963 P.2d 1250, rev. denied 266 Kan. 1107 (1998), the defendant pled guilty to five counts of aggravated incest in exchange for the State’s dismissal of six more counts of the same offense. The trial court denied Bussell’s motion to withdraw his plea, and the Court of Appeals affirmed. He argued that his plea was involuntary and manifestly unjust because the trial court and his attorney failed to advise him about the Kansas Sexually Violent Preda tors Act (KSVPA), K.S.A. 59-29a01 etseq., and the possibility that it would be applied to him. On the ground that potential application of the KSVPA is a collateral consequence of a plea to a sex crime, the Court of Appeals concluded that a trial court is not required in a sex crime case to advise the defendant about it. 25 Kan. App. 2d at 427. The Court of Appeals distinguished between potential and certain consequences in determining which the trial court was required to advise the defendant of:
“In this state, the trial court is only required to inform a defendant of the consequence of his plea of guilty if that consequence is definite, immediate, and almost automatic as a result of his guilty plea. [City of Ottawa v. Lester,] 16 Kan. App. 2d [244,] at 248, [822 P.2d 72 (1991)]. In the instant matter, there is nothing definite or automatic or immediate about the possible application of the KSVPA. The trial court was not required to advise this defendant of the possibility that the KSVPA might be invoiced against him at some time in the future.” 25 Kan. App. 2d at 427.
With regard to counsel’s role, the Court of Appeals reiterated that counsel is required to discuss possible criminal sanctions with defendant. The potential of civil proceedings under the KSVPA, however, may be omitted from the discussion without counsel’s breaching the standard of reasonableness. “The uncertainty inherent in predicting whether the KSVPA will ever by invoiced against defendant is such that the failure of his counsel to advise him of potential consequences cannot be said to be constitutionally deficient.” 25 Kan. App. 2d at 428. The Court of Appeals also expressed the view that defendant had not shown that the result would have been different had he been advised about the KSVPA. 25 Kan. App. 2d at 428-29.
Bussell is representative of aline of Kansas plea-withdrawal cases that consider what consequences the trial court must inform a defendant of. In Cox v. State, 16 Kan. App. 2d 128, Syl. ¶ 1, 819 P.2d 1241 (1991), rev. denied 250 Kan. 804 (1992), the Court of Appeals stated:
“Under K.S.A. 22-3210, a trial court is required to inform the defendant of the direct penal consequences of a guilty plea before accepting the guilty plea. The trial court is not required to inform a defendant of the collateral consequences of a guilty plea, including the loss of certain civil rights or privileges.”
Defendant’s parole eligibility and loss of unspecified civil rights were held to be collateral consequences. In City of Ottawa, 16 Kan. App. 2d 244, Syl, ¶ ¶ 2 and 3, the principle that the trial court need not inform a defendant of the collateral consequences of a guilty plea was reiterated, and suspension of defendant’s driving privileges was held to be a collateral consequence. In In re J. C., 260 Kan. 851, 925 P.2d 415 (1996), the familiar principle was applied, and the court concluded that the possibility that a plea may be used to enhance the sentence for a later crime is a collateral consequence. The court stated that “[s]uch a consequence is not definite, immediate, or automatic but rather only speculative.” 260 Kan. 851, Syl. ¶ 2. In State v. Legg, 28 Kan. App. 2d 203, 13 P.3d 355 (2000), rev. denied 270 Kan. 901 (2001), the familiar principle was applied, and the Court of Appeals concluded that die mandatory registration under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq., was a collateral consequence because sex offender registration is not penal in nature and imposes no affirmative disability or restraint. 28 Kan. App. 2d at 207.
Muriithi would distinguish Kansas cases, particularly Bussell, from the present case on the ground that the adverse immigration consequences of his plea were definite, immediate, and almost automatic. 8 U.S.C. § 1227(a)(2)(E)(i) (2000) makes “[a]ny alien who at any time after admission is convicted of a crime of domestic violence . . . deportable.” Deportation follows upon a finding, at the conclusion of a removal proceeding, that the alien failed to prove by clear and convincing evidence that he or she is lawfully present in the United States. 8 U.S.C. § 1229a(c) (2000). An unanswered question is the likelihood that a removal proceeding will follow a conviction on a deportable offense. Once a removal proceeding is underway, deportation would seem to be nearly inevitable due to the hurdle of estabhshing lawful presence in this country for an alien who has pled guilty to an offense that made him or her deportable.
The Kansas Legislature has not yet acted to reduce or eliminate the possibility that an alien defendant will plead guilty or nolo contendere without being aware that there might be severe immigration consequences. In the absence of protective legislation in this state, Muriithi urges the court to reserve the direct/collateral-consequences analysis for the pleas of United States citizens. He contends that deportation is such a severe consequence that it ought to be in a separate category. Many states have created separate statutory treatment for immigration consequences of criminal pleas. Federal courts have expressed the view that immigration consequences are so severe as to merit particularized treatment.
Deportation is a collateral consequence of a plea to a criminal charge. We see no valid reason to distinguish the collateral consequence of deportation from the collateral consequences at issue in the Kansas cases previously noted. Absent a statute requiring the trial court to do so, it has no duty to advise a defendant of the immigration consequences of a plea of nolo contendere to a misdemeanor charge.
Muriithi’s final argument is based on the trial judge’s failing to advise him that he was waiving constitutional rights. K.S.A. 2001 Supp. 22-3210(c) does not expressly require the trial court to inform a misdemeanant of anything. The statute does not even expressly require that the misdemeanant be present for a plea: “In traffic infraction, cigarette or tobacco infraction and misdemeanor cases the court may allow the defendant to appear and plead by counsel.” K.S.A. 2001 Supp. 22-3210(c).
In Legg, the Court of Appeals stated, with regard to Legg’s argument that his nolo contendere pleas to four misdemeanor counts were not voluntaiy as required by Boykin v. Alabama, 395 U.S. at 244: “This contention presupposes Boykins application to misdemeanor pleas and, therefore, that K.S.A. 1999 Supp. 22-3210(c) is not constitutionally adequate. For the reasons that follow, we will not resolve these issues in this appeal; we simply assume Boykin is applicable.” 28 Kan. App. 2d at 204.
Following the lead of the Court of Appeals and assuming that Boykin is applicable to Muriithi’s nolo contendere pleas to Class A and B misdemeanor charges, we examine the transcript of the plea proceeding to determine whether the pleas were knowingly and voluntarily made. There was a factual basis for the pleas in the affidavit of the prosecuting attorney, to which the defendant stipulated. He was told that he had an absolute right to a trial where the State would have to prove his guilt beyond a reasonable doubt, where he would have the right to confront the State’s witnesses and subpoena his own witnesses. He was also told that if he went to trial he would have an absolute right to appeal. Muriithi stated that he understood “all of those rights.” He was informed of the charges and penalties. He was represented by counsel. Muriithi complains, however, that he was not informed that he would be giving up the rights that accompany a trial. Muriithi is well educated and fluent in English. It should have been self-evident to Muriithi that trial rights are exclusive to trials.
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The opinion of the court was delivered by
Allegrucci, J.:
The Kansas Department of Revenue (Revenue) appeals from a final order of the Board of Tax Appeals (BOTA). At issue is Revenue’s assessment against National Cooperative Refinery Association (NCRA) for additional corporate income tax and interest for tax years ending September 30, 1993, 1994, and 1995. The additional assessment is due to Revenue’s determining, pursuant to K.S.A. 79-32,141, that NCRA, a Kansas business, and Cenex, Inc. (Cenex), a Minnesota business, are unitary so that NCRA must use the combined report method of allocating income and expenses in order to clearly reflect income of the businesses. NCRA appealed Revenue’s decision to BOTA, which overturned it. The appeal was transferred from the Court of Appeals on this court’s order. K.S.A. 20-3018(c).
Revenue lists five issues; NCRA suggests that there is a single issue and three sub-issues. We conclude the issue on appeal is whether NCRA and Cenex are required by K.S.A. 79-32,141 to use the combined report method of allocation of income and expenses. BOTA held that they were not required to do so.
The parties filed a stipulation of facts, which BOTA incorporated into its order. NCRA filed proposed findings of fact, which BOTA also incorporated into its order. On this appeal, Revenue asserts that only a few facts are necessary for resolution of the issue, but does not challenge any of the facts incorporated by BOTA into its order. The following narrative statement of facts is based on the facts stated in and incorporated into B OTA’s order. All facts reflect circumstances during the years for which the additional tax assessment was made, the tax years ending September 30, 1993, 1994, and 1995.
NCRA is a Kansas cooperative marketing association organized in 1943 as a nonprofit association under the Kansas Cooperative Marketing Act, K.S.A. 17-1601 et seq. NCRA owns all outstanding capital stock of its subsidiary corporations — Clear Creek, Inc., Clear Creek Transportation, Inc., Petroleum Resources, Inc., PRC Property Holdings, Inc., Jayhawk Transportation Corp., and Jay-hawk Pipeline Corp. NCRA and its subsidiaries filed consolidated federal and Kansas income tax returns for the tax years at issue.
Cenex is organized and operated under the cooperative association laws of Minnesota. It has approximately 1,600 members, which are local farmer cooperatives located in 15 north-central and northwest states.
NCRA is solely in the business of refining crude oil for supply of petroleum products, primarily fuel, to its stockholders. Cenex’s business consists of furnishing to its members the following: farm supplies, including refined fuels, fertilizer, insecticides, herbicides, lubricants, propane, tires, vehicle accessories, and information/ technology services. Cenex owns a refinery that produces asphalt. NCRA produces no asphalt.
Cenex bought 44% of NCRA’s stock in 1990. In July 1992, Cenex bought Farmland’s NCRA stock to bring Cenex’s ownership up to approximately 74%. Growmark, Inc., an Illinois cooperative association owns 19% of NCRA’s stock, and MFA Oil Company, a Missouri cooperative, owns 7%. NCRA’s stockholders (also known as members) have the right to purchase NCRA’s products in proportion to the percentage of stock held.
Shortly after acquiring more than half of NCRA’s stock, Cenex attempted to exercise control over NCRA. Growmark and MFA filed an action in the United States District Court for the District of Kansas seeking to block Cenex’s attempt to seize control. Under the court-approved settlement of the action, NCRA is governed by a six-member board of directors, four appointed by Cenex, one by Growmark, and one by MFA. A general manager conducts day-today operations of NCRA and reports to the board of directors. The parties agreed that NCRA will continue to operate on a cooperative basis and agreed to retain historic policies and practices of product allocation and earnings allocations and distributions.
NCRA’s annual sales are approximately $650 million. Cenex’s annual sales are approximately $2 billion. NCRA’s total assets (at book) are $400 million. Cenex’s total assets are well over $1 billion.
NCRA directors who were appointed by Cenex held no other positions of authority over NCRA and “did not participate in the management or operation of NCRA to any extent.” NCRA and Cenex had no common managers, officers, or employees. There were no transfers of employees between NCRA and Cenex. Each company had its own separate personnel and hiring policies and employee benefit plans. There were no technical service agreements between the companies.
Neither company used the other’s facilities, with the exception of one lease arrangement between the two companies. NCRA leases three storage tanks that Cenex owns near NCRA’s refinery for $21,000 per year. The lease agreement is an arm’s length transaction. NCRA has many storage tanks on its own property.
Cenex’s refinery uses primarily Canadian crude oil; NCRA does not. They do not purchase crude oil from the same sources. Each maintains its own separate crude oil supply department and personnel.
In addition to their separate departments for supply, each company maintains its own separate department for production, environment and safety, security, product distribution, transportation, accounting, personnel and human resources and public relations. The two companies did not coordinate activities in security, pollution control and permits, health insurance, refinery operation manuals, personnel matters, research and library resources, disposition of by-products, and information systems. The two companies exchanged technical information concerning safety and environmental matters to the extent that most refiners engage in exchanges of that type of information.
Each company arranged for its own legal, contracting, financial, and banking services. There were no joint borrowings. Neither company guaranteed any debts of the other. NCRA did make occasional loans of excess working capital to Cenex at prevailing market interest rates.
NCRA’s sales of its refined petroleum product to its stockholders are at arm’s length prices determined by reference to markets established by unrelated parties. NCRA rarely purchases from Cenex, and, when it has, its purchases of truck tires and light cycle oil have been at market prices. Cenex purchases refined petroleum products from other suppliers.
NCRA did not participate in decisions about the operation of Cenex. Cenex participated in NCRA’s decisions on refinery throughput volumes, product mix, and distribution volumes to the extent that any refiner or manufacturer has its largest customers designate quantities and delivery points and to the same extent as NCRA’s other customers.
In 1994, NCRA and Cenex pooled insurance coverages. The savings were allocated between the two companies.
On appeal, Revenue argues that its decisions on the subject of unitary businesses are entitled to judicial deference and not subject to review, or, if subject to review, are reviewable only for arbitrariness, unlawfulness, or capriciousness. Revenue bases its position on K.S.A. 79-32,141, which authorizes only the Director of Revenue to require businesses to use the combined report method. We note that Revenue’s arguments are contrary to K.S.A. 2001 Supp. 74-2438, which provides that “[a]n appeal may be taken to the state board of tax appeals from any finding, ruling, order, decision, final determination or other final action ... by any person aggrieved thereby.” The statute further provides that “the board shall conduct a hearing in accordance with the provisions of the Kansas administrative procedure act. The hearing before the board shall be a de novo hearing unless the parties agree to submit the case on the record made before the secretaiy of revenue or the secretary’s designee.” We recently rejected this identical argument in In re Tax Appeal of Panhandle Eastern Pipe Line Co., 272 Kan. 1211, 39 P.3d 21 (2002). We held:
“The authority of the Department is subject to review in that the legislature has conferred upon BOTA the authority to hear appeals of decisions of the Secretary of Revenue or the Secretary’s designee. BOTA is the paramount, lawfully constituted taxing authority in Kansas and, as such, functions independently of the Secretary of Revenue in matters of administrative judgment and decision. Syl. ¶ 7.
“BOTA bears an independent responsibility to review the decision of the Department; this responsibility is foreign to the concept of deference. BOTA need not defer to the Department’s interpretation of statute.” Syl. ¶ 8.
In accordance with In re Tax Appeal of Broce Construction Co., Inc., 27 Kan. App. 2d 967, 980-81, 9 P.3d 1281 (2000), BOTA presumed that Revenue’s determination of unity was correct and placed the burden of proving otherwise on NCRA. BOTA concluded that the taxpayer met its burden by showing that NCRA and Cenex do not have a unitary relationship.
In its review, BOTA found:
“[Tjhe evidence does not show the requisite dependency or contribution between NCRA and Cenex to consider the entities unitary for combined reporting purposes. NCRA is in the business of refining crude oil into petroleum products, which are sold to its three members. Although Cenex is enttitled to purchase approximately 75% of NCRA’s products, this is the nature of a cooperative and the two minority shareholders are likewise entitled to purchase products in proportion to each member’s ownership interest.”
BOTA distinguished the relationship between NCRA and Cenex from unitary relationships in Broce Construction; In re Tax Appeal of A. M. Castle & Co., 245 Kan. 739, 783 P.2d 1296 (1989); and Pioneer Container Corp. v. Beshears, 235 Kan. 745, 684 P.2d 396 (1984). With regard to Broce Construction, BOTA stated that it “involved a Kansas corporation, its wholly owned Oklahoma subsidiary and the subsidiary’s wholly owned Oklahoma subsidiary. The businesses were operated and controlled by the family patriarch in the same general line of asphalt paving. The corporations benefited from intercompany financing, loans and leases, and used common administrative functions.” With regard to A. M. Castle, BOTA stated that it “involved a corporation and its wholly owned subsidiary. Castle and its subsidiary shared corporate officers and directors; the subsidiary made 5-day, 15-day, and monthly business reports to Castle; and they shared an advertising agency, insurance carrier, accounting firm, and employee trust account.” With regard to Pioneer Container, BOTA stated that it “involved another parent corporation and wholly owned subsidiary. Both companies were in the business of manufacturing bags for the agriculture industry. The parent corporation shared its accounting services, financing, business expertise, and operational expertise with its subsidiary. They even comingled funds. Essentially, the two companies operated as one.”
BOTA stated with regard to NCRA and Cenex:
“Although the businesses of NCRA and Cenex may be considered to be in the same general line, an analysis of the totality of the facts indicates that the two corporations are not unitary. [BOTA] finds that the evidence in this matter does not show a strong central management coupled with centralized departments. The common management that does exist is due to mere shareholder activity. Unlike the unitary relationships in Broce Construction Co., Inc., A.M. Castle & Co., and Pioneer Container Corp., NCRA and Cenex have no common managers, officers or employees. They do not use each other’s corporate facilities and they maintain separate departments for supply, production, environment and safety, transportation, accounting, personnel, human resources and public relations. Each entity arranges its own legal, contracting, tax, financial and banking services. Further, Cenex is not a wholly owned subsidiary of NCRA, nor is NCRA a wholly owned subsidiary of Cenex. Even though the two corporations have entered into some arm’s length transactions, upon consideration of all of tire facts of this case, the Board concludes that there is no strong central management present.
“[BOTA] finds that NCRA is not owned or controlled directly or indirectly by Cenex, nor is Cenex owned or controlled directly orindirecdyby NCRA. [BOTA] has not addressed this issue in previous decisions because the previous cases have involved parent corporations and wholly owned subsidiaries and corporations whose stock was owned by the same entity. Upon consideration of the nature of a cooperative and tire transactions that have taken place, it is clear that Cenex does not control NCRA, even though it is a majority shareholder. Further, the two minority shareholders, Growmark, Inc. and MFA Oil Co. have taken significant steps to protect their interests and to ensure that Cenex does not unilaterally control NCRA.”
Revenue’s assessment against NCRA for additional tax and interest is due to Revenue’s determining, pursuant to K.S.A. 79-32,141, that NCRA and Cenex must use the combined report method of allocating income and expenses in order to clearly reflect income of the businesses. K.S.A. 79-32,141 provides:
“The director may allocate gross income, deductions, credits, or allowances between two or more organizations, trades or businesses (whether or not incorporated, or organized in the United States or affiliated) owned or controlled directly or indirectly by the same interests, if the director determines such allocation is necessary to prevent evasion of taxes or to clearly reflect income of the organizations, trades or businesses.”
The Due Process and Commerce Clauses of the federal Constitution do not permit a state to tax a corporation’s property, income, or gross receipts unless there is a link between the state and the corporation’s activities within the state. The Supreme Court
“has insisted on such a link by reference to the unitary business principle.
“Under the unitary business principle, if a taxpayer is carrying on a single unitary’ business within and without the state, the state has the requisite connection to the out-of-state activities of the business to justify inclusion in the taxpayer’s apportionable tax base of all of the property, income, or receipts attributable to the combined effect of the out-of-state and in-state activities. By the same token, if the taxpayer’s activities carried on within the state are not unitary with its activities carried on elsewhere, the state is constitutionally constrained from including the property, income, or receipts arising from those out-of-state activities in the taxpayer’s apportionable tax base.” 1 Hellerstein, State Taxation ¶ 8.07[1], pp. 8-58-59 (2001).
Between 1980 and 1992, the Supreme Court decided a series of cases delineating the constitutional scope of the unitary business for state apportionment purposes. The first case was Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S. 425, 63 L. Ed. 2d 510, 100 S. Ct. 1223 (1980). In Mobil Oil, the Supreme Court identified “functional integration, centralization of management, and economies of scale” as factors of profitability that arise from the operation of the business as a whole. 445 U.S. at 438. In subsequent cases, the Supreme Court reiterated its observation that a unitary business is characterized by the three factors. See Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 222, 64 L. Ed. 2d 66, 100 S. Ct. 2109 (1980); ASARCO Inc. v. Idaho State Tax Comm’n, 458 U.S. 307, 317, 73 L. Ed. 2d 787, 102 S. Ct. 3103 (1982); F.W. Woolworth Co. v. Taxation & Revenue Dept., 458 U.S. 354, 364, 73 L. Ed. 2d 819, 102 S. Ct. 3128 (1982); Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 179, 77 L. Ed. 2d 545, 103 S. Ct. 2933 (1983); Allied-Signal v. Director, Div. of Taxation, 504 U.S. 768, 781, 119 L. Ed. 2d 533, 112 S. Ct. 2251 (1992).
In A.M. Castle, the court discussed the three unities test used by California courts and stated that Kansas has adopted the other widely accepted test — the dependency/contribution test. 245 Kan. at 742.
In Panhandle, we said:
“A review of Kansas decisions reveals that in order to determine whether a corporate entity and its affiliates are engaged in a unitary business activity, the dependency/contribution test is proper. In Crawford Manufacturing Co., this court endorsed the dependency/contribution test for unitary business activity, stating:
“Whether a multi-state business is separate or unitary depends upon the manner in which its business is conducted. The essential test to be applied is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such relationship, the business is unitary.’ 180 Kan. 352, Syl. ¶ 2.
‘Stated another way, the test is whether a business’ various parts are interdependent and of mutual benefit so as to form one business rather than several business entities and not whether the operating experience of the parts is the same in all places. [Citations omitted.] Various portions of a business may be carried on exclusively in different states without destroying its unitary character if the integral parts are of mutual benefit to one another.’ 180 Kan. at 359.” 272 Kan. at 1231-32.
In Panhandle, Revenue argued that Panhandle and National Helium Corporation were not unitary under K.S.A. 79-32,141. In so finding, Revenue applied a bright line test that before it will consider two or more businesses unitary, one must own more than 50% of the other. Revenue argued that BOTA must defer to its bright line test. We found no validity for such a bright line test and labeled it a red herring issue in that it “is not reflected in the language of the Kansas statutes, case law, or even in the Department’s published regulations.” 272 Kan. at 1229. We further stated:
“BOTA bears an independent responsibility to review a decision of the Department; this responsibility is foreign to the concept of deference. Colorado Interstate Gas Co., 270 Kan. at 318. It would be illogical to ask BOTA to conduct a totally independent review and yet to insist that BOTA defer to the Department’s interpretation of statute. Therefore, we conclude that BOTA did not act unreasonably by choosing not to follow the Department’s more than 50 percent rule and, instead, solely contemplating K.S.A. 79-32,141, K.A.R. 92-12-72, and Kansas case law in its resolution of the issue before it.” 272 Kan. at 1230.
K.A.R. 92-12-72 provides:
“A taxpayer may have more than one (1) ‘trade or business.’ In such cases, it is necessary to determine the business income attributable to each separate trade or business. The income of each business is then apportioned by an apportionment formula which takes into consideration the instate and outstate factors which relate to the trade or business the income of which is being apportioned.
“The determination of whether the activities of the taxpayer constitute a single trade or business or more than one (1) trade or business will turn on the facts in each case. In general, the activities of the taxpayer will be considered a single business if there is evidence to indicate that the segments under consideration are integrated with, dependent upon, or contribute to each other and the operations of the taxpayer as a whole. The following factors are considered to be good indicia of a single trade or business, and the presence of any of these factors creates a strong presumption that the activities of the taxpayer constitute a single trade or business: (a) A taxpayer is generally engaged in a single trade or business when all of its activities are in the same general line.
“(b) A taxpayer is almost always engaged in a single trade or business when its various divisions or segments are engaged in different steps in a large, vertically structured enterprise.
“(c) A taxpayer which might otherwise be considered as engaged in more than one (1) trade or business is properly considered as engaged in one (1) trade or business when there is a strong central management, coupled with the existence of centralized departments for such functions as financing, advertising, research, or purchasing. Thus, some conglomerates may properly be considered as engaged in only one (1) trade or business when the central executive officers are normally involved in the operations of the various divisions and there are centralized offices which perform for the divisions the normal matters which a truly independent business would perform for itself, such as accounting, personnel, insurance, legal, purchasing, advertising, or financing.”
On this appeal, Revenue complains that BOTA seemed to require satisfaction of all three criteria of the regulation in order to find a unitary business. The regulation sets out three indicia of a unitary business and provides that any one of them gives rise to a strong presumption of a unitary business. The regulation also creates a sort of hierarchy of indicia. If all activities are in the same general line, a taxpayer “generally” is a unitary business; if vertically integrated, a taxpayer “almost always” is unitary; and central management will raise a presumption where other indicia are absent.
BOTA is a specialized agency that exists to decide taxation issues, and its decisions are given great weight and deference when it is acting in its area of expertise. In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999). In the present case, a careful reading of BOTA’s decision convinces us that BOTA fairly, although not formally, applied the regulation. The vertical integration of NCRA, which refines crude oil, and Cenex, which purchases the refined product, raised a strong presumption that the businesses are unitary. The strong presumption was rebutted, in BOTA’s analysis, by NCRA’s stronger evidence of the lack of dependency and contribution in all other aspects of the businesses. Evidence of separate and independent businesses, in BOTA’s assessment, included lack of central management and arm’s length transactions between the businesses.
BOTA’s view of the evidence appears to be sound. The evidence showed that NCRA’s only activity is refining crude oil and that Cenex sells farm supplies, including refined fuels, fertilizer, insecticides, herbicides, lubricants, propane, tires, vehicle accessories, and information/technology services. Cenex owns its own refinery for the production of asphalt, which NCRA does not produce. They do not cooperate in purchasing crude oil.
With regard to lack of central management, the evidence showed that the other two shareholders in NCRA sought and obtained a federal court’s injunction of Cenex’s attempt to exercise control over NCRA. As a result, NCRA continues to function on a cooperative basis and a general manager conducts day-to-day operations. The manager reports to a six-person board of directors, four of whom are appointed by Cenex as the 75% shareholder. The directors hold no other positions of authority over NCRA and do not participate “to any extent” in management or operation of NCRA. In addition, the businesses have no common managers, officers, or employees. Each has its own department for and independently handles all its personnel matters, production, security, accounting, legal, financial, and other matters that independent businesses perform for themselves. In one of the years at issue, 1994, NCRA and Cenex pooled insurance coverages and allocated savings between the two companies.
With regard to arm’s length transactions, NCRA and Cenex have an arm’s length lease agreement for three fuel storage tanks. NCRA on occasion has loaned excess working capital to Cenex at prevailing market interest rates. Cenex, like the other shareholders, has the right to purchase NCRA’s refinery products in proportion to its percentage of NCRA stock. Cenex, like the other shareholders, participates in decisions on NCRA’s refinery throughput volumes, product mix, and distribution volumes. Cenex’s input and its right to purchase a certain proportion of the output certainly are not evidence of independence, but they are substantially countered by Cenex’s purchases from NCRA being at arm’s length prices determined by reference to markets established by unrelated parties.
B OTA’s distinguishing the facts of the present case from other Kansas cases also appears to be sound, and B OTA’s view of the evidence is consistent with the views expressed by this court and the Court of Appeals. As BOTA noted in its decision, in previous cases involving determinations that companies were conducting unitary businesses, the evidence of dependency and contribution is markedly stronger than in the present case.
In Broce Construction, the Court of Appeals determined that Broce Kansas and two Oklahoma corporations, Broce Oklahoma and Woodward Asphalt Inc., were unitary. All were in the business of asphalt paving and resurfacing; the two Braces “essentially shared equipment.” 27 Kan. App. 2d at 973. Broce Oklahoma leased equipment from Brace Kansas below market rate and, in turn, subleased it to Woodward below market rate. Woodward is owned by Broce Oklahoma, which is a wholly owned subsidiary of Brace Kansas, which is controlled by Ray Broce, who owns 86% of its stock. He controlled all three, making the major business decisions. Brace Oklahoma transferred money to Brace Kansas by authorizing a highly unusual $750 per share dividend to its sole shareholder. Employees were shifted from Broce Oklahoma to Woodward and back again as business circumstances changed. The three businesses used the same law firm, insurance carrier, and accounting firm. There were many overlapping officers and directors of Brace Kansas and Brace Oklahoma, and many of them were family members of Ray Brace.
In A.M. Castle & Co., 245 Kan. at 745-47, the court determined that A.M. Castle & Co. and its wholly owned subsidiary, Hy-Alloy Steels Company, were conducting a unitary business. The businesses shared many officers and directors, and there was evidence that Hy-Alloy management decisions were made by Castle. HyAlloy made frequent business activity reports and budget reports to Castle. The two businesses engaged in substantial intercompany product and asset sales and exchanges and occasional employee transfers. Castle obtained industrial revenue bond financing for the expansion of Hy-Alloy. The companies used the same advertising, insurance, and accounting firms. Their pension plans were separate, but the assets were combined to lessen administrative costs and increase earnings.
In Pioneer Container Corp., 235 Kan. 745, the court determined that Pioneer Container Corporation and Pioneer Bag Company were unitary. Pioneer Container formed Pioneer Bag, owned all its stock, and hired its general manager. Both companies made bags for agricultural use, and the companies sold each other s products. Container paid Bag’s bills from comingled funds. Container kept the cash receipt book for both companies. Bag’s manager was not authorized to sign checks, and a Container executive signed all the checks for both companies. Container furnished accounting, financing, business experience, and operational expertise to Bag.
As BOTA stated, the three Kansas cases discussed in the preceding paragraphs involve wholly owned subsidiaries. The question of the tax status of two businesses where neither wholly owns or controls the other has not been addressed by BOTA or this court. Revenue asserts that BOTA decided that a unitary relationship may only be found between parent and wholly owned subsidiary corporations and that BOTA decided that cooperative enterprises are not subject to a unitary relationship finding. Revenue misconstrues BOTA’s decision. BOTA did not make either circumstance the controlling factor in the determination of a unitary relationship. BOTA accurately noted that other Kansas cases on the subject have involved wholly owned subsidiaries and have not involved cooperatives.
In Panhandle, we stated that “this court concludes that, under K.S.A. 79-32,141, a strict requirement of more than 50 percent ownership is not necessary to demonstrate control in a unitary business relationship.” (272 Kan. at 1235.) We further strived to achieve uniformity with federal law, particularly 26 U.S.C. § 482, which is comparable to K.S.A. 79-32,141. We note that “Treasury Regulation 26 C.F.R. § 1.482-l(i)(4), p. 538 (2001), states that “ ‘[t]he term “controlled” includes any kind of control, direct or indirect, whether legally enforceable, and however exercisable or exercised. It is the reality of the control which is decisive, not its form or the mode of its exercise.’ ”
We do not find that BOTA erroneously interpreted or applied the law, and we conclude that BOTA’s determination that neither NCRA nor Cenex is owned or controlled by the other, and thus is not a unitary business subject to combined filing requirement of K.S.A. 79-32,141, is supported by substantial evidence.
Affirmed.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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|
The opinion of the court was delivered by
Six, J.:
This case addresses Defendant Jerry D. Bramlett’s claim that the imposition of consecutive sentences, each within its presumptive statutory range, violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Bramlett pled guilty to seven sex crimes. The district court ordered four of the seven sentences to run consecutively. Bramlett appealed. In an unpublished opinion filed August 3, 2001, the Court of Appeals dismissed the case on the basis that it had no jurisdiction to review a presumptive sentence. It also rejected Bramlett’s argument that the sentence was unconstitutional under Apprendi.
We granted review to resolve this first impression issue. See K.S.A. 20-3018(b).
We find no Apprendi violation and thus affirm the Court of Appeals. Our appellate courts are without jurisdiction to review sentences that are within the presumptive range for the crime. K.S.A. 21-4721(c)(l).
FACTS
At sentencing, the State moved for an upward durational departure, which the district court denied. Bramlett was sentenced as follows: 165 months for rape (count 35), 154 months for aggravated criminal sodomy (count 1), 123 months for each of three additional counts of aggravated criminal sodomy (counts 28, 36, and 37), 51 months for aggravated indecent liberties (count 4), and 34 months for sexual exploitation of a child (count 38). Each sentence represented the aggravated sentence within the presumptive statutory range. See K.S.A. 2001 Supp. 21-4704, The district court ordered counts 1, 4, 35, and 38 to run consecutively. In doing so, the court acknowledged that Bramlett’s sentence would be statutorily capped at 330 months. See K.S.A. 2001 Supp. 21-4720(c)(3).
DISCUSSION
In his petition for review, Bramlett raises the sole question of whether, under Apprendi, his constitutional rights were violated when the district court imposed consecutive sentences. He asserts that the grounds on which the district court relied for imposing consecutive sentences, failure to fully accept his responsibility, were the same factual grounds the court had rejected in denying the upward departure requested by the State. Bramlett expands his assertion to reach a conclusion that his consecutive sentences were imposed to bypass appellate review. He concludes: “To allow a sentencing court to circumvent the due process rights of a defendant to have a jury decide the facts when a sentence is increased by merely characterizing the sentences as consecutive sentences instead of an upward departure should be grounds for reversal.”
Generally, sentences within the presumptive range are not reviewable. The imposition of consecutive sentences does not constitute a departure sentence subject to appeal. State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000). However, the issue of whether the imposition of consecutive sentences is unconstitutional under Apprendi involves a question of law over which we have unlimited review. See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).
K.S.A. 21-4608(a) provides that when separate sentences of imprisonment for different crimes are imposed on a defendant on the same day, the sentences shall run concurrently or consecutively as the court directs. Whether a defendant receives concurrent or consecutive sentences in within the discretion of the sentencing court. State v. Jamison, 269 Kan. 564, 576, 7 P.3d 1204 (2000). In general, a defendant has no constitutional right to concurrent rather than consecutive sentences. U.S. v. White, 240 F.3d 127, 135 (2d Cir. 2001).
In Apprendi, the United States Supreme Court held that, “[ojther 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.
Apprendi does not address the question of consecutive sentences. The Apprendi court said:
“It is appropriate to begin by explaining why certain aspects of the case are not relevant to the narrow issue that we must resolve. First, the State has argued that even without the trial judge’s finding of racial bias, the judge could have imposed consecutive sentences on counts 3 and 8 that would have produced the 12-year term of imprisonment that Apprendi received; Apprendi’s actual sentence was thus within the range authorized by statute for the three offenses to which he pleaded guilty. . . . The constitutional question, however, is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. . . . The sentences on counts 3 and 22 have no more relevance to our disposition than the dismissal of the remaining 18 counts.” (Emphasis added.) 530 U.S. at 474.
In State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), a durational departure case, we addressed the application of Apprendi to Kansas statutory and case law. See K.S.A. 2001 Supp. 21-4716. There, we noted that the district court had imposed two 68-month sentences upon Gould, going beyond the maximum sentence in the applicable grid box for each. 271 Kan. at 413. Thus, Apprendi applied.
Here, unlike Gould, the district court imposed a presumptive sentence for each count within the applicable grid box. The highest level of felony for which Bramlett was convicted was rape, a level one felony. He received the maximum sentence in the applicable grid box (165 months). Bramlett contends that the district court erroneously increased his sentence for rape beyond 165 months by imposing consecutive sentences for his other crimes. Bramlett’s argument is not persuasive.
The district court did not exceed die maximum KSGA sentence for any individual count. Therefore, it cannot be said that, as to any individual count, tire court’s findings resulted in the imposition of a greater punishment than was authorized by the jury’s verdict. See Apprendi, 530 US at 494.
The Court of Appeals’ decision dismissing the appeal is affirmed. The district court is affirmed.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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The opinion of the court was delivered by
Lockett, J.:
This is a direct appeal from a conviction of first-degree premeditated murder. Defendant was sentenced to fife imprisonment, 25 years without parole. Defendant claims the trial court erred by (1) not allowing the defense to call a rebuttal witness; (2) failing to hold a competency hearing; (3) admitting the defendant’s statements to police; (4) failing to instruct on lesser included offenses; (5) admitting a gruesome videotape; (6) finding the first-degree premeditated murder statute and corresponding jury instruction are not unconstitutionally vague because first-degree murder is indistinguishable from second-degree murder; (7) allowing the State’s psychiatrist to testify about statements by and tests performed on die defendant which occurred during a mental examination conducted without Miranda warnings; and (8) failing to read back testimony in response to a jury request.
In the early morning hours of July 26, 1998, the defendant, Grant Groschang, and Lisa Thompson drove to the Wyandotte County fairgrounds to kill Julie Bellaart. Bellaart, who had a booth at the fair, had decided to spend the night in her car on the grounds rather than make the trip back early the next morning to set up her booth. Bellaart rented a house that Thompson and others lived in with her. Groschang, who once lived in the house, was planning to move back in. Bellaart had neglected to pay the utilities and the telephone bill and to buy food, even though the house members had paid for these expenses. As a result, the other house members were unhappy with Bellaart.
In anticipation of moving back into Bellaart’s house, Groschang obtained forms to apply for a protection from abuse order against Bellaart. Groschang thought that the ex parte order would restrain Bellaart, who was in love with him, from living in the house when he moved back in with Thompson. He wanted Bellaart out of the house because Bellaart would “get in the way of [his] going out with anybody else ‘cause she always got in the middle of it, tried to get in the middle of whatever [he] was involved in.”
On July 24, 1998, Bellaart’s tenants and Groschang met at the house. The group expressed frustration as to how Bellaart was running the house. Groschang determined that the protection order he had considered applying for would not adequately meet his needs because Bellaart would go “ape shit” when she found out. Groschang and Thompson whispered about a plan to kill Bellaart. Groschang then made several references to the group regarding putting a “cap” in Bellaart. Thompson told Groschang it would be “silly” to do because he would get caught.
When Groschang and Thompson left the house in his pickup truck to get coffee, Groschang took his .357 Magnum. Groschang, who had heard that a milk jug could be attached to the end of the gun to make a silencer, brought a milk jug with him. It was raining. Because the back window of the truck was broken, they drove to Groschang’s house and got into his van. They then drove to the QuikTrip for gas and coffee and then to the Wyandotte County fairgrounds where Thompson directed Groschang to Bellaart’s car.
Groschang got out of the van, climbed over a fence to get to the driver’s side of Bellaart’s car. He opened the door and shot Bellaart in the head five times. Groschang and Thompson then left the scene. Along the highway in Kansas City, Kansas, they threw out the window the milk jug and a shirt Groschang had used to keep the gun dry.
The next morning, friends went to the fair grounds to help with Bellaart’s booth. They noted that Bellaart was not at the booth. When the friends checked Bellaart’s car, they found her dead.
The investigation led to the arrest of Thompson and Groschang. Thompson pled no contest to voluntary manslaughter of Bellaart. Groschang gave a statement to the police, confessing to the crime. Groschang pled not guilty and at trial asserted defenses of mental disease or defect, voluntary intoxication, and involuntary intoxication. Groschang was convicted of premeditated murder. This appeal follows.
Refusal to Allow the Defense to Call a Rebuttal Witness
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. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Groschang’s defense was that his mental state was profoundly affected by his erratic use of a prescribed antidepressant, Zoloft, and in this altered mental state, he was unable to form the requisite intent for criminal responsibility. Both the defense and the State presented expert evidence on Groschang’s mental state at the time of the murder.
The defense witness, Dr. Ronald Shlensky, testified that, generally, Zoloft is well tolerated and helpful to alleviate depression in the majority of people who take the drug. However, if a person has a slightly sensitized brain because of an early fife brain injury, he or she may be more likely to experience adverse effects from antidepressants such as Zoloft. Included in the fist of adverse effects is a change in personality, increased aggression, grandiose ideology, irritability, and a feeling of “specialness.” In sensitized people, the antidepressant may activate the manic side of manic-depressive disorder. With certain antidepressants, including Zoloft, erratic use results in “discontinuation syndrome.” According to Dr. Shlensky, people with sensitive brains who have “discontinuation syndrome” have been known to perpetrate uncharacteristic “violent acts.” Dr. Shlensky had examined and tested Groschang; reviewed his family, medical, and social history; and determined that it was probable that Groschang’s brain was sensitive to the effects of antidepressants and his erratic use of the drug caused him to suffer from a “discontinuation syndrome.”
Dr. J.L.L. Fernando from Lamed State Security Hospital, who had evaluated Groschang for the State, testified at trial regarding Groschang’s mental state at the time of the crime and in a report admitted into evidence that stated:
“With reference to the event which occurred on or around July 26, 1998, . . . the information available in the reports submitted from the Wyandotte County District Attorney’s Office (police reports, co-defendant’s statement, Mr. Groschang’s statement) coincide with the account given by Mr. Groschang during his stay at SSH. The description given in these reports and the description given by Mr. Groschang, during the time period in question, do not convey information about, or descriptions of his functioning, which indicate Mr. Groschang was experiencing symptoms of a psychotic disorder (command hallucinations, disoriented behavior or delusional beliefs) which would have impaired his ability to know the nature and quality of his acts or distinguish between right and wrong. In fact, Mr. Groschang has described his reasoning processes whereby he decided to ‘kill her’ (the victim). He spoke of the incident, not as an impulse, but something for which he maintained on task for at least forty-five minutes (Mr. Groschang had driven his vehicle in the rain for at least forty-five minutes from Kansas City, Missouri, to Wyandotte County to reach the fair grounds where the victim allegedly slept in a car). During the forty-five minutes prior to the incident Mr. Groschang denied experiencing command hallucinations or delusional beliefs which were directing or controlling his behavior. He described himself as being in a ‘rage.’ Prior to the time of the incident, he considered options available to him to ensure that he would not be caught or detected. He also planned an alibi. (Reports indicate Mr. Groschang, with his co-defendant, planned to inform others if the need arose that they were at Perkins Restaurant at the time period of question.) Thus, after reviewing all the available data, the staff concluded that the information does not reflect a description of his functioning which would indicate that during tire time period in question Mr. Groschang had experienced symptoms of a psychotic process (delusions or hallucinations) which impaired his ability to know the nature and quality of his act or distinguish between right and wrong. Therefore, it is the opinion of the staff that Mr. Groschang was not experiencing any symptoms of a major mental illness (disease of the mind) on or around the time period in question which would have indicated he ‘lacked the mental state’ required as an element of the offense charged.”
During the trial, certain witnesses were asked by the prosecutor if they had taken or were taking Zoloft and, if so, whether they had suffered adverse effects from the drug. Thompson, the codefendant who had previously pled no contest to voluntary manslaugh ter, testified that she had taken Zoloft and that she had not suffered adverse effects. William Crumpton testified that Bellaart had been on medication and that Bellaart and Groschang had the same doctor. The defense attempted to rebut this testimony by requesting leave to call a lay witness who had taken Zoloft to testify he had suffered adverse effects, including thoughts of murder without fear, appreciation of human life, or appreciation of consequences. The trial court denied defense’s request to introduce the rebuttal witness testimony stating:
“I’ve been thinking about this since it was first brought to my attention earlier this morning and I do not believe that that testimony would be relevant to this particular case. I think that Dr. Shlensky presented expert testimony regarding that and what could happen and his opinion as to what was going on in the defendant’s head when this was all going on. And what somebody else’s reaction to it would have been is certainly not relevant to the issues in this case.”
Groschang contends that the trial judge abused his discretion in denying him the opportunity to rebut the State’s evidence that two people associated with the case had used Zoloft without adverse effect, which implied to the jury that the drug could not have adversely affected Groschang’s mental state. Groschang argues that, in light of the testimony elicited by the State, evidence of an adversely affected lay witness was relevant and corroborated Dr. Shlensky’s conclusion that Groschang had suffered discontinuation syndrome. To support this assertion, defendant points out that during deliberations the jury requested to see the Zoloft entry in the Physician’s Desk Reference (P.D.R.). We note that the pages of the P.D.R. the jury received did not contain information regarding discontinuation syndrome. Therefore, the P.D.R. did not provide corroboration of Dr. Shlensky’s testimony, and the defense did not object but had agreed to the portions of the P.D.R. that were sent to the jury.
To support his argument, Groschang relies on McKissick v. Frye, 255 Kan. 566, 578-79, 876 P.2d 1371 (1994) (where one party introduces an inadmissible fact into evidence, the other party may introduce a similar inadmissible fact to remove an unfair prejudice which might otherwise result); State v. Thompkins, 263 Kan. 602, 624, 952 P.2d 1332 (1998) (where defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject); State v. Macomber, 241 Kan. 154, 158, 734 P.2d 1148 (1987) (if collateral or indirect testimony is introduced without objection, it is error not to allow the defendant to show such testimony is false); and State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 (1992) (it is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense to the charge so the jury may properly weigh the evidence and reach its verdict).
The prosecutor’s questions of witnesses regarding their personal experience with Zoloft were not relevant to an issue at trial. However, no objection was made to admission of this evidence by the defendant. Under the circumstances, was the denial of Groschang’s request to admit rebuttal testimony of a witness who had taken Zoloft and had suffered effects similar to the effects Groschang alleged within the judge’s discretion?
We note that the judge’s denial of the request did not prohibit Groschang from asserting his theory of defense (see Humphrey, 252 Kan. at 14.) Dr. Shlensky had adequately and effectively communicated to the jury that Zoloft’s alleged effects on Groschang were rare but within the scope of adverse effects reported in the literature and observed by him in his private practice. The evidence Groschang sought to introduce did not rebut false evidence presented by the State (see Macomber, 241 Kan. at 158) — there is no evidence that the witnesses’ assertions that they had not suffered adverse symptoms as a result of Zoloft were false. In addition, the denial of the defense request did not prevent defendant from exploring an area. The possibility of adverse effects from Zoloft was fully explored by the defense (see Frye, 255 Kan. at 578-79). Therefore, the trial judge acted within his discretion in denying the defense’s request to introduce rebuttal testimony.
Failure to Require a Competency Hearing
A person is incompetent to stand trial when he or she is charged with a crime and because of mental illness or defect is unable to understand the nature and purpose of the proceedings against him or her or to make or assist in making his or her defense. K.S.A. 22- 3301. If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial, the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant. K.S.A. 22-3302(a). The presumption is that defendant is competent to stand trial. See State v. Hedges, 269 Kan. 895, 912, 8 P.3d 1259 (2000).
Prior to trial, the defense filed notice of its intent to raise the defense of lack of mental state. The notice stated:
“COMES NOW THE Defendant, by and through [his attorney], Appointed Defense Counsel, and hereby gives notice pursuant to K.S.A. 22-3219 of the defendant’s 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. The Defendant also gives notice that the Defense intends to raise related issues including but not limited to involuntary intoxication, competency to stand trial, diminished capacity, consent to search, voluntariness of confessions, and reliability of confessions.” (Emphasis added.)
The State then moved for a psychiatric evaluation of Groschang. The State’s motion requested the court to order the defendant into the custody of Lamed State Security Hospital for an evaluation pursuant to K.S.A. 22-3302 (competency to stand trial) and K.S.A. 22-3303. The defense did not oppose the motion.
The psychiatric evaluation report from Lamed specifically addressed defendant’s competency to stand trial:
“Mr. Groschang is well aware of his current legal predicament and he verbalizes well [an] understanding [of] the seriousness of the present charges that are brought against him. He has communicated an understanding of the role and function of the various officials of the court, how a court trial is conducted and his role as a defendant in a court of law. He has indicated understanding the consequences of being found guilty of the present charges. Currently, he is motivated to assist his attorney in his defense and additionally, he possesses the [effective stability and the capability required to assist his attorney in the preparation and presentation of a legal defense and would be able to manage his own behavior appropriately during a trial. Therefore, it is the opinion of the staff that Mr. Groschang currently meets the criteria to be considered competent to stand trial.
“The court order indicates to consider ‘the effects, if any, on the defendant’s competency and his ability to assist in his defense including, but not limited to, his ability to testify in his own defense should the defendant choose to do so.’ In this regard, Mr. Groschang is not taking any medication at this time and therefore the issue of the effects of any medication in relation to his competency is not an issue; also, he is capable of testifying in his own defense if he so chooses.”
Groschang asserts the report of Dr. Shlensky was sufficient to require the trial court to find him incompetent. The report also states, in part: “[Groschang] is and was at the time of the incident suffering from . . . Schizoaffective disorder ... an organic brain syndrome . . . [and] Sertraline (Zoloft) intoxication.” (Emphasis added.)
We note that although Dr. Shlensky reported the presence of these mental disorders and syndromes, the doctor did not conclude that Groschang was incompetent to stand trial. The Lamed report had concluded that Groschang was competent. The defense never requested a hearing to challenge that finding. Therefore, the trial court did not err by not holding a competency hearing.
Admitting Defendant’s Statements
Prior to trial, Groschang moved to suppress his statement to police after his arrest. Detective Greg Lawson of the Kansas City, Kansas, Police Department testified at the suppression hearing. Based on an arrest warrant, Lawson arrested Groschang at his residence in Kansas City, Missouri. Groschang was taken to the Kansas City, Missouri, Police Department for questioning. Before interviewing Groschang, the detectives presented Groschang an advice of rights form. After satisfying themselves that Groschang could read the form and was not impaired, the detectives requested Groschang sign the form acknowledging that he had read it and understood his rights. Groschang signed the acknowledgment.
Groschang, who agreed to talk to the. police, was articulate and responsive to questions. Groschang stated that he had gone to Perkins the night that Bellaart was murdered and did not know anything about the crime. The officers advised him that information from other witnesses had implicated him in the crime. At that time, Groschang invoked his Miranda rights. Questioning immediately stopped.
Detective Mast, who with Lawson conducted the interview, then advised Groschang that they had sufficient information from other sources to charge him with the crime. Therefore, it was not nec essary for him to give a statement. This irritated Groschang. Groschang again expressed a desire to speak with an attorney. As the officers got up to leave the room, Groschang said, “What do you guys want to know?”
Lawson informed Groschang, ‘We can’t talk to you anymore, you know, you’ve invoked your right to an attorney. We can’t ask any more questions, this interview’s over, you know, by your request.” Groschang said, ‘Well, I don’t have a problem, you know, I just don’t like tins guy” (indicating Detective Mast). To clarify Groschang’s wishes, Lawson said, “Okay. Are you re-initiating this interview? That’s the bottom line because I cannot go on with this interview unless, you know, I mean you’re the one who re-initiated it.” Groschang stated that he .wanted to talk.
After Mast left the room, Lawson began reviewing with Groschang the evidence collected up to that point, which included witness statements and a weapon found in Groschang’s room. Lawson told Groschang that the weapon was crucial evidence, and he was going to have to account for the weapon if he was going to give a truthful statement.
Groschang gave an “informal off-tape interview” before the officers turned on the videotape for a “formal interview.” During the formal interview, Groschang was asked if he understood his rights. Groschang replied, “I don’t understand anything anymore.” Lawson then asked Groschang, “Specifically about these rights, let’s go back to square one. Did we read them to you?” Groschang answered, “Yes.” Groschang was then asked, “Are you going to give us a statement today on your own free will?” Groschang replied, “May as well.”
The trial court reviewed psychiatric reports and considered the testimony of Detective Lawson then ruled:
“Let me just cut to the chase here. Let the record reflect that yesterday — -at the conclusion of the hearing yesterday both parties provided me with a statement of individual psychiatrists and the parties stipulated the court could consider those without any sort of testimony or cross examination. I have read both of those reports, Ive heard the testimony of Detective Lawson here today.
“And basically on the matters that are put forth here, I find that the statement that was given to Detective Lawson as he testified here this morning is admissible in this trial as being freely and voluntarily given, that he had been properly advised of his Miranda rights and that the circumstances [that] Detective Lawson testified to would indicate that the defendant understood his rights, he understood he did not have to take — make a statement. That, in fact, he did invoke his rights at one point and then after that point indicated that he did desire to speak, and apparently that’s when the formal statement was taken.
“Reading Dr. Shlensky’s report, it would indicate that perhaps — I’m interpreting what’s in this report — is that — that perhaps this time Mr. Groschang’s mental state was such that his judgment may have been impaired, but not to the point of where he did not understand what was going on and he may have made a bad judgment as to giving a statement or not. But there’s nothing that I see here drat would indicate that this statement should be suppressed in any fashion.”
To determine whether a defendant’s confession is voluntary, a court looks at the totality of the circumstances. The prosecution bears the burden of proving that a confession is admissible by a preponderance of the evidence. Factors include 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 is whether the statement was the product of the free and independent will of the accused. State v. Minor, 268 Kan. 292, 297-98, 997 P.2d 648 (2000).
When an accused has invoked his or her right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he or she responded to further police-initiated custodial interrogation, even if he or she had been advised of his or her rights. An accused who has expressed a desire to remain silent is not subject to further interrogation by law enforcement authorities until counsel has been made available to the accused, unless the accused initiates further communication, exchanges, or conversations with the authorities. State v. Matson, 260 Kan. 366, 373, 921 P.2d 790 (1996) (citing Edwards v. Arizona, 451 U.S. 477, 68 L. Ed.2d 378, 101 S. Ct. 1880 [1981]).
An accused may waive Miranda rights by his or her own acts and words in initiating conversation with police. See State v. Strayer, 242 Kan. 618, 625, 750 P.2d 390 (1988). In determining whether events subsequent to the exercise of a constitutional right to counsel constitute a waiver of the previously asserted right, the court must first determine whether the accused actually invoked the right and, if so, the court must then determine whether the accused (a) initiated further discussions with the police and (b) 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). Waiver of the right must be knowing, voluntary, and intelligent under the totality of the circumstances. See Oregon v. Bradshaw, 462 U.S. 1039, 1046, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983); Matson, 260 Kan. at 374.
In Strayer, after the defendant was arrested and read his Miranda rights, he stated he understood his rights and would not discuss the specifics of the case with police. After making that statement to the officers, the defendant then began questioning the officers regarding his apprehension and, during a lengthy conversation, made incriminating statements. The Strayer court held that the defendant waived his Miranda rights by his “own acts, words, and surrounding circumstances.” 242 Kan. at 625.
Groschang contends that there is not substantial competent evidence to support the trial court’s finding that he understood his rights. For support he relies on State v. Gagnon, 139 N.H. 175, 651 A.2d 5 (1994).
In Gagnon, when police officers took Gagnon into custody, he appeared intoxicated and had difficulty walking. He was taken into an office, still in handcuffs, to be questioned. During an hour-long interrogation, Gagnon continued to exhibit signs of intoxication, even appearing to fall asleep at times. Before interrogating Gag-non, the officer read him his Miranda rights. The officer then asked Gagnon whether he understood those rights. Gagnon responded, “ T don’t understand anything[;] I don’t know why I’m here[;] I didn’t do anything[;] I wasn’t driving[;] I was asleep in the back seat ....’” 139 N.H. at 176. The officer repeated the Miranda warnings. Gagnon again said he did not understand. The officer then asked what specifically the defendant did not understand. Gagnon replied that he did not understand anything. The officer proceeded to interrogate Gagnon, although Gagnon never made a physical gesture or verbal statement indicating that he understood his rights.
Statements made by Gagnon during the course of the interrogation were admitted at trial. These statements were sometimes contradictory and contrary to the physical evidence and tended to undermine the defense strategy.
The trial court specifically found that Gagnon’s statements were in response to interrogation and were “ ‘clearly not spontaneous comments.’ ” 139 N.H. at 177. Therefore, the law concerning custodial interrogation applied to the statements. Gagnon was convicted of driving after habitual offender certification, driving while under the influence, subsequent offense, disobeying an officer, and reckless driving. Gagnon appealed, contending that the trial court should have suppressed the statements because they were obtained in violation of his State and federal constitutional rights.
The Gagnon court cited case law recognizing that a defendant’s valid waiver of a right need not be explicit, but absent an explicit waiver, courts must look to the totality of the circumstances to determine whether the record supports the trial court’s ruling that the defendant waived his or her Miranda rights knowingly, intelligently, and voluntarily beyond a reasonable doubt. 139 N.H. at 177. The court observed that a defendant’s “ ‘mental and physical conditions are crucial in determining whether a knowing, intelligent, and voluntary waiver has occurred.’ ” 139 N.H. at 178.
After noting that one of the interrogating officers testified at trial that at the time the defendant was interrogated the defendant was “ ‘obviously intoxicated,’ ” the Gagnon court stated that while intoxication does not preclude the possibility of a valid waiver, it is a factor in determining whether a waiver has been made knowingly, intelligently, and voluntarily. 139 N.H. at 178. The Gagnon court then observed that even if the defendant had not been highly intoxicated, the manifest weight of the evidence indicated that his alleged waiver of rights was not valid. The officer’s testimony was that, when asked whether he understood his rights, the defendant repeatedly said, “ 1 don’t understand.’ ” 139 N.H. at 176-77. The officer’s only basis for believing the defendant understood his rights and thus was capable of knowingly, intelligently, and voluntarily waiving those rights was best illustrated by this exchange between defense counsel and the officer at the suppression hearing:
“ ‘[Attorney]: Sergeant Rue], you’re saying that die fact that a person says “I don’t understand” in an argumentative tone of voice indicates that they do, in fact, understand and that’s the basis for your believing that he understood?
“ ‘[Officer]: That is my belief, yes.
“ ‘[Attorney]: But, in fact, you did testify that he did not ever indicate to you, either verbally or physically by physical gesture, that he understood?
“ ‘[Officer]: That is correct.’ ” 139 N.H. at 178.
Given the admission by the State’s own witness that Gagnon never gave any indication, verbal or otherwise, that he understood his rights or chose to waive them, the Gagnon court held that the totality of the circumstances, even when viewed in the light most favorable to the State, did not support the trial court’s finding that the defendant validly waived those rights and reversed the defendant’s convictions. 139 N.H. at 178.
Here, the State points out that although Groschang in the taped interview indicated that he did not understand “anything anymore,” he indicated by signing the acknowledgment of rights and by his subsequent conduct that he understood his rights. Because the statement by Groschang that he did not understand was subsequent to the signing of the Miranda form, we look to Groschang’s conduct as an indication of his understanding.
The scenario that occurred during the interview clearly demonstrated that Groschang understood his rights and knew how to invoke them. When he invoked his rights, the questioning ceased, and when he withdrew that invocation, the officers asked him to clarify his intentions, which he did, and the questioning resumed. Groschang’s statement that he “didn’t understand anything anymore” was not a specific indication that he did not understand his rights.
Gagnon is factually distinguishable. In Gagnon, the defendant neither, by statement or conduct, indicated that he understood his rights. Here, Groschang signed the acknowledgment of understanding and stated that he understood his rights, then waived his rights to remain silent and have an attorney present during ques tioning. Groschang knowingly, voluntarily, and intelligently waived his right to remain silent.
Lesser Included Offenses
A criminal defendant has a right to an instruction on all 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 jury verdict in accord with the defendant’s theory; and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P.2d 727 (1997). An instruction on an included offense is not proper if from the evidence the jury could not reasonably convict the defendant of the lesser offense. State v. Robinson, 261 Kan. 865, Syl. ¶ 7, 934 P.2d 38 (1997).
The State and defense requested an instruction on second-degree murder. The trial court denied the requests, stating:
“Well, I don’t believe that second-degree is an appropriate instruction here. All the evidence of what took place in this particular matter would have been a premeditated first degree murder. And the only thing that would excuse that would be if the defendant’s state of mind was legally such that he could not form the specific intent to premeditatedly kill someone or the specific intent to kill someone. And that intent to kill is an element of the crime of first-degree murder. And I don’t see how a jury could find the defendant not guilty of first degree murder, but find him guilty of second degree murder under the defenses that have been presented here.”
Groschang asserts that the trial court erred in fading to instruct on second-degree murder because there was evidence presented at trial that would support a second-degree murder conviction. The evidence Groschang refers to was offered by Thompson. Thompson’s testimony indicates that when she and Groschang left the house for the fairgrounds, she had no intention of killing Bellaart. The defendant also points to the testimony and report of Dr. Shlensky which indicated that Groschang was suffering from the adverse effects of Zoloft.
First, we note that Thompson’s testimony did not suggest that Groschang’s killing of Bellaart was not premeditated. Her testimony minimized her role in the killing by suggesting that she had no direct knowledge of Groschang’s plan to kill Bellaart and that she was surprised by the murder. In addition, the mental defect defense supported by the testimony and report of Dr. Shlensky did not provide evidence to support a second-degree murder conviction.
Dr. Shlensky’s testimony and report dealt with Groschang’s ability to form criminal intent. Groschang admitted to planning to kill Bellaart and then following through with his plan by shooting five bullets into her head while she slept. If the jury believed that Groschang was incapable of forming criminal intent because of mental defect or because of voluntary or involuntary intoxication, it would have found Groschang not guilty. Since the jury did not believe Groschang’s defense, the jury concluded that he was guilty of premeditated murder. The evidence at trial did not require the trial judge to give a lesser instruction of first degree premeditated murder.
Admitting a Gruesome Videotape
The trial court has broad discretion regarding the admission of relevant demonstrative photographs. To determine whether such photographs should be admitted, a trial court must decide whether they are relevant and a proper foundation has been laid. State v. Roberts, 261 Kan. 320, 329, 931 P.2d 683 (1997).
Groschang contends that the trial court erred in admitting a video of the crime scene into evidence. The video depicted, among other things, the body of Bellaart with five bullet wounds to her head. At trial, Groschang objected to the admission of the tape. The district court overruled the defense objection, stating that the videotape was relevant to depict what occurred and how the scene looked at the time.
Except as otherwise provided by statute, all relevant evidence is admissible. K.S.A. 60-407(f). Even if the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a first-degree murder case. Photographs are unduly prejudicial and are erroneously admitted when they are unduly repetitious, are particularly gruesome, and add nothing to the State’s case. State v. Hickles, 261 Kan. 74, 85, 929 P.2d 141 (1996).
We have viewed the videotape; it showed the victim’s head, blood splatters, and brain matter. The evidence that Groschang committed the crime was uncontested and overwhelming. The jury did not accept Groschang’s mental defect defenses. The gruesome videotape was properly admitted.
First-Degree Premeditated Murder Statute and Jury Instruction
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).
Groschang argues that K.S.A. 21-3401(a), premeditated murder, in conjunction with the instruction given in this case on the definition of “premeditation” effectively blurred the distinction between first-degree premeditated murder and second-degree intentional murder, making the statute constitutionally vague. We disagree.
Instruction No. 7 stated the statutory elements of premeditated murder and included the following definition of “premeditation”: “Premeditation means to have thought over the matter beforehand for any length of time sufficient to form an intent to act.”
First, it should be noted that the trial court’s instruction No. 7 adds to the PIK Crim. 3d instruction defining premeditation. PIK Crim. 3d 56.04 provides that “premeditation means to have thought over the matter beforehand.” The PIK instruction does not address in any manner the time required to form intent.
In State v. Moncla, 262 Kan. 58, this court examined the following modification to the PIK definition of “premeditation”: “ ‘Premeditation means to have thought over the matter beforehand. There is no particular time period for premeditation and it may arise in an instant.’ ” 262 Kan. at 70. Based upon the facts, we approved the phrase “there is no particular time period for premeditation” as a correct statement of Kansas law. However, we disapproved the phrase “[premeditation] may arise in an instant.” 262 Kan. at 72.
In State v. Saleem, 267 Kan. 100, 977 P.2d 921 (1999), the defendant challenged the sufficiency of evidence of premeditation. The defendant noted our definition of premeditation in State v. Thompkins, 263 Kan. 602, 952 P.2d 1332 (1998), where this court used the definition of premeditation found in State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560 (1887): Premeditation “means that there was a design or intent before the act; that is, that the accused planned, contrived, and schemed” before killing the victim. The Saleem court stated that the Thompkins’ definition was based on homicide definitions in earlier statutes and that the current PIK instruction (“premeditation means to have thought over the matter beforehand”) is not from the 1887 McGaffin case. The Saleem court rejected the defendant’s use of an earlier definition of premeditation to argue that the evidence was insufficient to find premeditation. Justice Allegrucci concurred with the majority opinion, but disagreed with the majority’s approval of the definition of “premeditation” as “to have thought over the matter beforehand.” 267 Kan. at 115. J. Allegrucci stated:
“As noted in the majority opinion, this court has used words such as ‘plan,’ ‘contrive,’ and ‘schemed beforehand’ to define premeditation. This court has required that a defendant not only think it over beforehand, but also to come to the conclusion that he or she would kill the victim and then do so. The majority, by approving PIK Crim.3d 56.04(b), has, in my opinion, essentially repealed K.S.A. 21-3402(a).”
Groschang adopts Justice Allegrucci’s statement and argues that the premeditated murder statute together with the instruction approved by this court blurs the distinction between premeditated murder and second-degree intentional murder to the point where there can never be an intentional killing that is not a premeditated killing.
Did the statement in Instruction No. 7 that “[premeditation means to have thought over the matter beforehand for any length of time sufficient to form an intent to act” make K.S.A. 21-3401(a) constitutionally vague under the facts herein? No. Groschang told Thompson it was necessary to kill Bellaart. Groschang then left the house armed with a weapon intending to kill Bellaart. It took the defendant at least 45 minutes to drive to the fairgrounds. He climbed over a fence, opened the car door and fired five shots into the head of the sleeping victim. The jury found Groschang had the necessary mental capacity to form criminal intent to kill the victim. There is no evidence of second-degree intentional murder. The only evidence is that Groschang committed premeditated murder.
Miranda Warnings Prior to Mental Examination
K.S.A. 22-3302(3) provides that no statement made by the defendant in the course of any examination to determine competency, whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.
Groschang contends that the trial court erred in allowing into evidence statements made by him during the court-ordered evaluation to determine competency to stand trial and mental state at the time of crime. He does not take issue with evidence related to his mental state at the time of the crime, since he put his mental state at issue. He, therefore, waived any objection to evidence relevant to this point. In addition, Groschang did not object to the evidence of competency during the trial. He argues that this court must address the issue because it involves the prohibition against self-incrimination, a fundamental constitutional right.
Where constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). We have recognized three exceptions to the general rule when:
“(1) the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. [Citations omitted.]” State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998).
When reviewing a constitutional challenge to the admission 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. State v. Lyons, 266 Kan 591, 598, 973 P.2d 794 (1999).
Because Groschang was committed to Lamed State Security Hospital for evaluation regarding his competence to stand trial and his mental state at the time of the crime, it is difficult to separate the testimony relating to one aspect of the mental examination or the other. Groschang complains of the following testimony:
“[Mr. Groschang had] moderate tendency toward self-abasement and a desire to self-disclose psychopathology possibly for the purpose of a secondary gain or because of the presence of acute emotional distress. During all contacts with the patient, it was obvious he was an intense, thorough, meticulous, focused individual who was aware of the seriousness of his current legal dilemma and the options available to the court as far as possible disposition of his case. On several occasions, he made it known to this examiner that he would consider the possibility of suicide if convicted as charged and sentenced to prison.”
Groschang then cites the testimony of Dr. Femando regarding his IQ score of 115. Groschang complains about the doctor’s testimony that he diagnosed Groschang with dysthymic disorder, early onset; alcohol dependence; and personality disorder, not otherwise specified, with dependent and self-defeating traits, and the doctor’s conclusion that the psychological screening for neuropsychological types of impairment revealed no indication of significant dysfunction.”
Because K.S.A. 22-3302(3) specifically prohibits introducing at trial incriminating statements made by the defendant in the course of a competency examination, no Miranda warning is required. With one exception, the complained-of testimony relates to obser vations and conclusions of evaluators and test results. The exception noted is Dr. Fernando’s testimony that “[o]n several occasions, [Groschang] made it known to this examiner that he would consider the possibility of suicide if convicted as charged and sentenced to prison.” The defendant has failed to show that any statement he made during the competency evaluation was introduced as evidence of guilt.
Failing to Read Back Testimony
K.S.A. 22-3420(3) places a mandatory duty upon the trial court to respond to the jury’s request for further information as to any part of the law or evidence arising in the case, but the manner and extent of the trial court’s response rests in the sound discretion of the court. State v. Boyd, 257 Kan. 82, Syl. ¶ 1, 891 P.2d 358 (1995).
The P.D.R. was not admitted into evidence. Dr. Shlensky referred to the P.D.R. and read portions of the Zoloft article in the P.D.R. during cross-examination. During jury deliberations, the jury requested to examine the P.D.R.'In response to the jury’s request, the trial judge, after conferring with the prosecutor and the defense, sent back two sections of the P.D.R. that had been testified to and read during trial. Defense counsel agreed that the sections should be sent to the jury and requested that the sections be enlarged so they would be easier to read by the jury.
Groschang now complains that a relevant portion of the article, a sentence stating that .4 percent of people have mania as a result of taking Zoloft, was not included in the material sent to the jury. The sentence was read to the jury during Dr. Shlensky’s testimony.
The record clearly shows that Groschang participated in the proceedings and was given the opportunity on the record to voice any objections or to suggest a different response. He did not do so. The time-honored rule that an issue not presented to the trial court may not be raised for the first time on appeal, State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), also applies to jury requests under K.S.A. 22-3420(3). As the State points out, a timely objection is necessary to give the trial court the opportunity to correct any alleged trial errors. See State v. Wolfe, 194 Kan. 697, 699, 401 P.2d 917 (1965).
Clearly, the defendant had the opportunity to object and to inform the trial court of his dissatisfaction with the court’s response to the jury request while the court still had a chance to correct any error. By failing to object, the defendant waived his right to raise the issue on appeal.
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The opinion of the court was delivered by
Larson, J.:
This is a tax protest appeal filed for the years 1998 and 2000 pursuant to K.S.A. 79-2005 involving eight tracts of pastureland in Rice County, Kansas, with valuations ranging from a high of $9,030 to a low of $1,680. The taxpayers, Ann W. Smith and others, challenge the methodology used by the Director of Property Valuation (PVD) of Kansas Department of Revenue and contend it is not in compliance with the statutory requirements of K.S.A. 79-1476.
The Board of Tax Appeals (BOTA) consolidated the appeals, joined the PVD as a necessary party, held á hearing, and denied the protests, holding the taxpayers had not presented sufficient evidence to refute die PVD’s agriculture land valuation methodology. After the taxpayers’ petition for reconsideration was denied they appealed to the Court of Appeals pursuant to K.S.A. 2000 Supp. 74-2426 and K.S.A. 77-601 et seq. Our jurisdiction is pursuant to K.S.A. 20-3018(c) (transfer from Court of Appeals on our own motion).
Contentions of the parties
The taxpayers narrowly contend (1) the nine crop reporting districts established by Kansas Agricultural Statistics (KAS) utilized by the PVD in its valuation formula are not homogeneous areas, (2) the use of soil qualities and types to determine gross rental income from pastureland does not comply with the K.S.A. 79-1476 requirement that value be based on net rental income normally received, and (3) the term “land classes” refers to usage and does not justify the use of soil types to classify and value land. These contentions lead to the broader claimed conclusion that the for mula devised by the PVD does not comply with the mandates of K.S.A. 79-1476.
The PVD argues (1) the taxpayers did not meet their burden of proof to show the lands value differed from BOTA’s appraisal, (2) there was substantial competent evidence that PVD has established a proper classification system for all land devoted to agricultural use, using criteria established by the United States Department of Agriculture Soil Conservation Service and KAS, and (3) appraisal judgment and standards are followed and incorporated throughout the process of data collection and analysis in establishing pasture values pursuant to K.S.A. 79-1476.
Proceedings, evidence, and order of Board of Tax Appeals
The taxpayers began by protesting the manner of valuation of their pastureland for 1998 and 2000 as allowed by K.S.A. 79-2005. Their appeals and the evidence presented at their tax protest hearing contended that pasture rental is actually based on factors such as condition of the grass, carrying capacity, location, and fencing, but is never based on soil type. The taxpayers presented evidence that the area used by the PVD for their region runs from the Flint Hills grass on the east end to the short grass country on the west end and is not homogeneous as the statute requires. The taxpayers claimed their land should be appraised on actual rental rates in their county rather than by a complex formula that does not reflect rental rates for their property located in the center of the region utilized by the PVD. Their testimony failed to establish or opine what the actual valuation of their property should be.
The testimony of the PVD established that in determining the value of pasture or rangeland, the PVD combines information from several sources. KAS has divided the state into nine relatively equal sized crop reporting districts, with the divisions following county lines. The districts contain from 8 to 14 counties, and the district in question, C-50, has 11 counties. KAS surveys each district annually to find the average cash rental rate per acre of grassland. In 1997, the Department of Agricultural Economics of Kansas State University did a similar survey except that native and tame pastures were surveyed separately. From this survey, a ratio of native to tame pasture cash rental rates was determined for each district. Using this ratio and the data gathered by KAS, an average cash rental for native and tame pasture per each district was calculated.
Dr. Paul Ohlenbusch of Kansas State University’s Department of Agronomy, in cooperation with the Natural Resource Conservation Service (NRCS) (which is the successor and synonymous to the Soil Conservation Service) developed a grazing index for each acre of pasture or rangeland based on soil type for both native and tame pasture.
The soil types are rated based on the forage producing capacity which determines the animal stocking rates. Bill Roth, a soil scientist, testified on behalf of the PVD that he helped to map soil types in the various counties. He noted that similar soil types are grouped together by the NRCS into range sites. He testified that the range sites were homogeneous regions. Mr. Roth stated that the forage rate is determined for each range site. Factors used to determine productivity of soil mapping units include “weather, soil characteristics (depth, texture, slope, fertility, moisture holding capacity), and plant growth and development.” Any further reference to soil classes, soil types, soil mapping units or range sites will be a reference to these groupings of soil types used to determine forage rates and the grazing index.
The PVD testimony and evidence included admission of a pamphlet prepared by Dr. Ohlenbusch which explains the process of developing the grazing index, and includes three basic assumptions:
“1. A single level of potential must be used for each type of grazing land.
“2. The level selected must be attainable by a reasonable individual with an average knowledge of the management requirements of the type of grazing land they use.
“3. The future of the grazing land’s potential must be a consideration in the process.”
To develop the index, two existing databases together with published soil surveys were used. The current listing of soil series by county was obtained from the NRCS and combined with a range-land carrying capacity database developed by Kansas State University Extension and NRCS personnel in the mid-1980’s. The carrying capacity database was based on NRCS range site descriptions which are a part of the standard materials maintained in field offices. Values are assigned by clipping existing vegetation on representative range sites in different conditions to determine the dry matter produced. The soil surveys provided the basis for the tame pasture data. In addition to the following basic requirements, the index assumes that average grazing management is used.
The classification system is based on plant succession which states that plant species change in response to external factors. The major natural factors are drought, grazing, and fire. Today, management is the dominant factor. The rangeland was indexed at a good condition class which, based on research and experience, is considered to be the most profitable condition level to manage that can also maintain and potentially improve the resource.
Average soils in a district carry an index value of one, while the more productive soils are rated higher and vice versa. The average gross rental income per acre for each district is determined by surveying the actual rates paid by individuals within the districts. To find the gross rental income of a particular acre of ground, the weighted average grazing rate of the parcel is multiplied by the average gross rental income of the district. Average expenses including maintenance, management, water, and fencing costs, determined on a per acre basis for each district, are deducted from the gross rental income to reach net rental income per soil mapping unit per district each year. The net rental income for the previous 8 years are averaged together, and this amount is submitted to the PVD.
The PVD capitalizes the 8-year average net rental income at a rate provided by K.S.A. 79-1476 to arrive at the “use-value.” The PVD determines the use-value (the taxable value) per acre of range site, per district, for both native and tame pasture and then provides those values to the county appraisers. The PVD representative testified that the values are “fine tuned” for each county based on range sites located in the counties and clippings taken from those sites. Values are also calculated for dry land and irrigated farm acreage, neither of which are the subject of this appeal. The county appraiser classifies the property as native pasture, tame pasture, cultivated dry land, or cultivated irrigated land (or some frac tion of each), then multiplies the appropriate use-value provided by the PVD times the number of acres of each soil type on the parcel to ascertain the assessed value of the property.
Zoe Gehr, the PVD representative, testified die crop reporting districts were homogeneous in a geographical sense. Mr. Roth testified the range sites used for soil classification were homogeneous areas. All the witnesses agreed the crop reporting districts were not homogeneous as to soil quality and productivity.
After hearing this testimony, and reviewing the exhibits submitted, BOTA reached the following findings and order:
“5. The subject parcels consist of eight (8) agricultural parcels located in Rice County, Kansas with respective agricultural use value as listed above in paragraph 2. The Taxpayers have protested the State’s methodology utilized in valuation of these parcels for the 1998 and 2000 tax years. The Taxpayers questioned numerous elements of PVD’s methodology utilized to value the subject agricultural use parcels.
“6. Don Kueck and Wayne Smith appeared as witnesses for the Taxpayers and testified as follows: Soil types have some effect on rental rates, yet soil type alone is not the sole determinant for land livestock carrying capacity. Similar soil types in different areas may have different productivity due to the amount of rain, temperature, hillside exposure, and/or wind/water erosion. Poorer soil types often produce better grasses for livestock. A land manager must stock livestock based on land productivity potential with consideration for the more fragile soils. For a landlord, there are circumstances where a parcel’s shape results in a larger section being more economically efficient than a smaller section due to the fencing costs. Also, certain communities have different stocking rates based primarily on demand, location, and proximity to water supply rather than on land soil types. Lastly, the Taxpayers argued that the central crop reporting district is not homogeneous and should be separated into three (3) difference [sic] regions. See Taxpayer Exhibit No. 1.
“7. Truett McQueen appeared on behalf of Rice County and testified as follows: The subject parcels were valued in accordance with PVD guidelines. The County informally performed an agricultural survey and determined that actual stocking rates were lower than that indicated by PVD. See Taxpayer Exhibit No. 2. Mr. McQueen submitted that he could not adjust the agricultural use values implemented by PVD. Mr. McQueen submitted a disparity in agricultural use values in Rice County. Mr. McQueen also submitted that cultivated land provides a higher economic return than pastureland, yet PVD has certain pastureland that is valued greater than certain types of cultivated land. In regard to the Taxpayers’ parcels, Mr. McQueen testified that while the subject parcels have a mix of soil types, different rental rates are not charged based on said sod types. Any difference in pasture rates is due to historical rates and the availability of water.
“8. PVD testified and submitted evidence to indicate as follows: The 1998 and 2000 agricultural use values for the subject properties were determined in compliance with K.S.A. 79-1476. Rice County is located in crop reporting district C-50, which is composed of 11 counties. Kansas Agriculture Statistics and Kansas State University survey the crop reporting districts to obtain a statistically significant number of responses, and this data is utilized in valuing agricultural use land. PVD further explained how pasture and rangeland agricultural use values are calculated. See PVD Exhibits No. 1 through 3.
“9. Land devoted to agricultural use is valued pursuant to Kan. Const, art. XI, §12 and K.S.A. 79-1476, and amendments thereto. The valuation method is based upon the income or agricultural production capabilities. Types of soil are to be classified into homogeneous groups so that the values will be uniform and equal. The Kansas Director of the Division of Property Valuation (PVD) is to calculate the eight-year average production immediately preceding the calendar year which immediately precedes the year of valuation. See K.S.A. 79-1476, and amendments thereto. Reasonable agricultural expenses should be subtracted from the landlord’s share of the net rental income. The net income is then capitalized at a rate determined to be the sum of the contract rate of interest on new federal land bank loans in Kansas on July 1 of each year averaged over a five-year period. . . . ’ See K.S.A. 79-1476, and amendments thereto.
“10. The powers of the director of Property Valuation are addressed in several statutes. The director has general supervision of the taxation system throughout the state. See K.S.A. 79-1402. Pursuant to K.S.A. 79-1404 Sixteenth, the director is compelled to:
[d]o and perform any act or to make any order or direction to any county board of equalization or any county or district appraiser as to the valuation of any property or any class of property in any township, city or county which, in die judgment of said director of property valuation, may seem just and necessary, to the end diat all property shall be valued and assessed in the same manner and to the same extent as any and all other property, real or personal, required to be listed for taxation.
“11. K.S.A. 79-1476 empowers the director to ‘administer and supervise a statewide program of reappraisal of all real property located within the state.’
“12. K.S.A. 79-1456 requires county appraisers to ‘follow the policies, procedures and guidelines of the director of property valuation in the performance of the duties of the office of county appraiser.’
“13. The Board finds that pursuant to K.S.A. 79-1402, K.S.A. 79-1404 and K.S.A. 79-1476, the director is empowered by the legislature to use the Kansas Agricultural Statistics’ Crop Reporting Districts and Division of Water Resources Irrigation Districts. Pursuant to this same grant of power, the Board finds that the director has the authority to use the methodologies as illustrated in PVD Exhibit No. 1.
“14. The Board further finds that PVD has complied with K.S.A. 79-1476 in valuing agricultural land, and that the values determined by PVD are the best estimate of use value for the subject parcels.
“15. Pursuant to K.S.A. 79-1609, the County Appraiser must support the validity and correctness of the value by a preponderance of evidence for residential property or real property used for commercial and industrial purposes. Pursuant to Kan. Const, art. XI, § 1, the subject property is not classified as residential property or real property used for commercial and industrial purposes. Therefore, the burden of demonstrating the incorrectness of the value is on the Taxpayer.
“16. The Board finds that the Taxpayers have presented general information and referenced various instances concerning elements of PVD’s valuation methodology; however, the Taxpayers have not presented any evidence which would indicate that the subject parcels have not been valued in accordance with applicable State statutes. Additionally, the Board notes that upon cross-examination, Mr. McQueen acknowledged the imprecision of the County’s agricultural survey. Summarily, the Board finds that the Taxpayers have not presented sufficient evidence to refute PVD’s agricultural land valuation methodology. The Board further finds that the evidence presented by PVD substantiates the subject parcels’ present respective 1998 and 2000 agricultural use values. Based thereon, the Board concludes that the subject parcels’ present respective 1998 and 2000 agricultural use values shall be, and the same are hereby, sustained.
“IT IS THEREFORE ORDERED BY THE BOARD OF TAX APPEALS OF THE STATE OF KANSAS that, for the reasons stated above, the Taxpayers’ protests shall be, and the same are hereby, denied.”
Standard of review
The taxpayers’ challenge relates to the interpretation and application of K.S.A. 79-1476. That is a question of law over which this court exercises plenary review. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
In interpreting the applicable statutes, we look to the rules set forth in Todd v. Kelly, 251 Kan. 512, 515-16, 837 P.2d 381 (1992):
“ ‘The function of the court is to interpret the statutes, giving the statutes the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
“ ‘As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). There is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982).’ City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 (1985).
“ ‘A construction of a statute should be avoided which would render the application of a statute impracticable or, inconvenient or, which would require the performance of ... an impossible act.’ In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 8, 643 P.2d 168 (1982). See 73 Am. Jur. 2d, Statutes § 251.
“ ‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).
“ ‘[T]he court must give effect to the legislature’s intent even though words, phrases or clauses at some place in the statute must be omitted or inserted.’ Ross, 245 Kan. at 594.
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. . . .’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).”
The State contends BOTA’s ruling that the taxpayers have not presented sufficient evidence to refute PVD’s agricultural land valuation methodology is a negative ruling. We have held that when a trial court makes a negative factual finding the party challenging that finding must prove arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice because the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it. Thomason v. Stout, 267 Kan. 234, 238, 978 P.2d 918 (1999).
The review we make of decisions of BOTA in valuation matters was set forth in Board of Ness County Comm’rs v. Bankoff Oil Co., 265 Kan. 525, 537, 960 P.2d 1279 (1998):
“Our standard of review of the actions of BOTA is pursuant to K.S.A. 77-621(c). In re Tax Appeal of Boeing Co., 261 Kan. 508, 514-15, 930 P.2d 1366 (1997). We may only grant relief if we find:
‘(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
‘(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
‘(4) the agency has erroneously interpreted or applied the law;
‘(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
‘(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 included 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(c).
“In Boeing, we said: ‘BOTA is a specialized agency that exists to decide taxation issues. BOTA’s decisions should be given great deference when it is acting in its area of expertise. However, if we find that BOTA’s interpretation is erroneous as a matter of law, we should take corrective steps.’ 261 Kan. 508, Syl. ¶ 3. A party challenging the validity of BOTA’s action has the burden of proving it was erroneous. In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d 947 (1996).”
K.S.A. 79-1476
The statute in issue is long and complicated and is set forth in applicable part as follows:
“The director of property valuation is hereby directed and empowered to administer and supervise a statewide program of reappraisal of all real property located within the state. Except as otherwise authorized by K.S.A. 19-428, and amendments thereto, each county shall comprise a separate appraisal district under such program, and the county appraiser shall have the duty of reappraising all of the real property in the county pursuant to guidelines and timetables prescribed by the director of property valuation and of updating the same on an annual basis. In the case of multi-county appraisal districts, the district appraiser shall have the duty of reappraising all of the real property in each of the counties comprising the district pursuant to such guidelines and timetables and of updating the same on an annual basis. Commencing in 1994, every parcel of real property shall be actually viewed and inspected by the county or district appraiser once every four years. Any county or district appraiser shall be deemed to be in compliance with the foregoing requirement in any year if 25% or more of the parcels in such county or district are actually viewed and inspected.
“Valuations shall be established for each parcel of real property at its fair market value in money in accordance with the provisions of K.S.A. 79-503a, and amendments thereto.
“In addition thereto valuations shall be established for each parcel of land devoted to agricultural use upon the basis of the agricultural income or productivity attributable to the inherent capabilities of such land in its current usage under a degree of management reflecting median production levels in the manner hereinafter provided. A classification system for all land devoted to agricultural use shall be adopted by the director of property valuation using criteria established by the United States department of agriculture soil conservation service. For all taxable years commencing after December 31, 1989, ah land devoted to agricultural use which is subject to the federal conservation reserve program shall be classified as cultivated dry land for the purpose of valuation for property tax purposes pursuant to this section. Productivity of land devoted to agricultural use shall be determined for all land classes within each county or homogeneous region based on an average of the eight calendar years immediately preceding the calendar year which immediately precedes the year of valuation, at a degree of management reflecting median production levels. The director of property valuation shall determine median production levels based on information available from state and federal crop and livestock reporting services, the soil conservation service, and any other sources of data that the director considers appropriate.
“The share of net income from land in the various land classes within each county or homogeneous region which is normally received by the landlord shall be used as the basis for determining agricultural income for all land devoted to agricultural use except pasture or rangeland. The net income normally received by the landlord from such land shall be determined by deducting expenses normally incurred by the landlord from the share of the gross income normally received by the landlord. The net rental income normally received by the landlord from pasture or rangeland within each county or homogeneous region shall be used as the basis for determining agricultural income from such land. The net rental income from pasture and rangeland which is normally received by the landlord shall be determined by deducting expenses normally incurred from the gross income normally received by the landlord. Commodity prices, crop yields and pasture and rangeland rental rates and expenses shall be based on an average of the eight calendar years immediately preceding the calendar year which immediately precedes the year of valuation. Net income for every land class within each county or homogeneous region shall be capitalized at a rate determined to be the sum of the contract rate of interest on new federal land bank loans in Kansas on July 1 of each year averaged over a five-year period which includes the five years immediately preceding the calendar year which immediately precedes the year of valuation, plus a percentage not less than .75% nor more than 2.75%, as determined by the director of property valuation.
“Based on the foregoing procedures the director of property valuation shall make an annual determination of the value of land within each of the various classes of land devoted to agricultural use within each county or homogeneous region and furnish the same to the several county appraisers who shall classify such land according to its current usage and apply the value applicable to such class of land according to the valuation schedules prepared and adopted by the director of property valuation under the provisions of this section.
“It is the intent of the legislature that appraisal judgment and appraisal standards be followed and incorporated throughout the process of data collection and analysis and establishment of values pursuant to this section.
“The provisions of this act shall not be construed to conflict with any other provisions of law relating to the appraisal of tangible property for taxation purposes including the equalization processes of the county and state board of tax appeals.”
Legislative overview of K.S.A. 79-1476 and attempted amendments
In 1975, article 11, § 12 was added to the Kansas Constitution. L. 1975, ch. 516, § 1. It permits land devoted to agricultural use to be valued “for ad valorem tax purposes upon the basis of its agricultural income or agricultural productivity, actual or potential.” Prior to that time, fair market value was used. In 1985, the legislature, pursuant to the authority granted in Kan. Const, art. 11, § 12 enacted K.S.A. 79-1476. L. 1985, ch. 314, § 1; see also House Committee of Assessment and Taxation minutes, March 22, 1985, attachment 10. A representative of the Kansas Livestock Association testified on behalf of Senate Bill 164. He stated that the proposed statute might raise the rates of some agricultural land, but the bill was still favored because “land would be appraised on a more mathematically certain basis and more importantly, on a more logical and equitable basis that has some relationship to the income that farmers and ranchers are capable of earning from it.” House Committee of Assessment and Taxation minutes, March 22, 1985, attachment 10. He also stated that the purpose was to prevent farmers and ranchers from being forced to sell based on excessive real estate taxes due to rising prices of neighboring urban properties.
A representative from the Kansas Department of Revenue real estate division presented an analysis of agricultural land “use value” to the House Assessment and Taxation Committee. He noted that the Soil Conservation Service identified eight “land capability classes.” A sample of 13 counties was analyzed to determine use value, per county, per land capability class. Fair market values were also determined for each class. Only two counties were analyzed to determine use value and fair market value for the irrigated land classes. He defined “use value” and how that is determined for rangeland:
“ ‘Use Value’ can have more than one meaning; however, it is generally conceded, as it relates to agricultural land, that ‘Use Value’ represents a value based on the net income that the land is capable of producing, assuming typical management practices.
“The procedures used to estimate the net income for the various land capability classes are as follows:
“11. Determine the gross cash rent paid per acre for the various rangeland classes. The gross cash rent is an average of that amount paid over the past eight years.
“12. Estimate the typical landlord expenses for each of the rangeland classes. This amount is an average of those expenses incurred over the past eight years.
“13. Deduct the expenses from the gross income for each of the various range-land classes and process die net income into capital value.”
Minutes of House Committee on Assessment and Taxation, March 20, 1985, attachment 1.
A supplemental note to the Senate Bill 164, also introduced during discussion of the bill by the House Assessment and Taxation Committee on March 19,1985, summarizes the effect of the agricultural provisions: “Values for land devoted to agricultural use also would be established on the basis of agricultural productivity (use-value).”
In 1990, the legislature amended K.S.A. 79-1476, adding the following language: “For all taxable years commencing after December 31, 1989, all land devoted to agricultural use which is subject to the federal conservation reserve program shall be classified as cultivated dry land for the purpose of valuation for property tax purposes pursuant to this section.” (Emphasis added.) L. 1990, ch. 347, § 1. In 2000, the legislature added a similar provision: “For all taxable years commencing after December 31, 1999, all land devoted to agricultural use which is subject to the federal wetlands reserve program shall be classified as native grassland for the purpose of valuation for property tax purposes pursuant to this section.” (Emphasis added.) L. 2000, ch. 139, § 7.
Also in 2000, the legislature rejected an attempted amendment to K.S.A. 79-1476 which would have expressly prohibited use of soil classifications for determining net income from pasture and rangeland. The amendment also would have expressly permitted the county or district appraiser to consider adverse factors in valuing individual parcels of ground:
“The net rental income normally received by the landlord from pasture or range-land within each county or homogeneous region shall be used solely as the basis for determining agricultural income from such land, and soil classifications for such land shall not be considered. . . .
“ . . . Notwithstanding the foregoing, any county or district appraiser may apply adverse influence factors to any such value and deviate from such value accordingly subject to [review and approval] of the assistant director of property valuation.” H. B. 2715 (2000).
The bill was passed by the House but died in the Senate Committee on Taxation and Assessment.
Attorney General Opinion No. 89-63
In 1989, former Representative Gayle Mollenkamp requested an opinion from the Attorney General as to whether the PVD’s use of quality of the soil in valuing pastureland was proper. He contended the PVD’s actions were in violation of K.S.A. 1988 Supp. 79-1476, which requires “net rental income normally received” to the basis of valuation. He stated: “Pastureland is pastureland, regardless of quality of location.”
In response, the Attorney General issued opinion No. 89-63 which in its analysis of K.S.A. 1988 Supp. 79-1476 pointed out that the statute requires the PVD “to develop a classification system for all land devoted to agricultural use,” and that “the statute does not except pasture and rangeland from this provision.” The opinion further states that the criteria for the classification system by statute must come from the Soil Conservation Service (SCS), and the criteria that agency has developed is based on soil types:
“The land is to be classified using criteria established by the . . . SCS. SCS criteria consists of soil types with the same or similar production capability assigned to a specific productivity group. Thus, in a sense, the ‘quality’ of the soil is the basis used for determining classification under the statute.” Att’y Gen. Op. No. 89-63.
The Attorney General approved the PVD’s classification of pasture and rangeland by soil quality and the use of that system to value grassland: “In our opinion, the procedure developed by the [PVD] for valuing pasture and rangeland ... is within the statutory guidelines. It appears to adequately derive median values for various types of land.” (Emphasis added.) Att’y Gen. Op. No. 89-63.
Analysis
Although a question of jurisdiction was raised, both parties now contend and we agree that jurisdiction does exist in the appellate courts. Taxpayers are appealing an appraisal and while the role of the county appraiser and the PVD might not be as clear as the parties believe, the assessment appears to be made by the PVD. Pursuant to K.S.A. 2000 Supp.74-2426, jurisdiction for the appeal is in the Court of Appeals from which our transfer was made.
This then brings into focus the contentions of the taxpayers that (1) the nine crop reporting districts are not compliant with the statutoiy requirement that net rental income be drawn from each “county or homogeneous region,” and more specifically that the districts are not “homogeneous,” (2) the use of soil qualities to determine the gross rental income for pasture and rangeland is not compliant with the statute’s requirement that value be based on “net rental income normally received,” and (3) the term “land classes” in K.S.A. 79-1476 refers to cultivated dry or irrigated land and native and tame pasture, not soil types, and the language does not justify the use of soil types to classify and value land.
K.S.A. 79-1476 requires that
“valuations . . . be established for each parcel of land devoted to agricultural use upon the basis of the agricultural income or productivity attributable to the inherent capabilities of such land in its current usage under a degree of management reflecting median production levels in the manner hereinafter provided. A classification system . . . shall be adopted by the director of property valuation using criteria established by the United States department of agriculture soil conservation service.” (Emphasis added.)
As we earlier outlined, the system utilized by the PVD determines the productivity of land at a median or lesser degree of management. This system classifies land by soil type, and produc tivity levels are calculated for potential use of the land. This system generally appears to comply with the statute.
However, K.S.A. 79-1476 provides more specific guidance, as it later provides:
"Productivity of land devoted to agricultural use shall be determined/or all land classes within each county or homogeneous region based on an average of the eight calendar years immediately preceding the calendar year which immediately precedes the year of valuation, at a degree of management reflecting median production levels. The director of property valuation shall determine median production levels based on information available from state and federal crop and livestock reporting services, the soil conservation service, and any other sources of data that the director considers appropriate.” (Emphasis added.)
PVD’s present methodology utilizes the soil classifications from each crop reporting district. It contends this is a homogeneous region. Taxpayers contend these areas are too large, have too much variance between eastern and western boundaries (especially in the district which includes Rice County), and do not comply with the statutory requirements.
The areas selected are an attempt by the PVD to determine landlord net rental income by regions large enough to provide statistically accurate results and at the same time satisfy the longevity requirement. The regions selected are those utilized by KAS for purposes of its agricultural surveys. Within these regions the productivity of the soil types is determined and adjusted based on long-term clipping studies of the foliage produced by soil scientists who are range management specialists. From these environmental studies and clipping results, a grazing index is generated which approximates carrying capacity for each soil type throughout the state. When adjustment is made throughout the district based on the application of the grazing index, the mandates of the statute appear to be followed.
KAS also determines the landlord gross rental income by annual surveys that are randomly obtained throughout the district. The surveys appear to be statistically more justifiable than the survey of a single class of property in Rice County about which testimony was given as a part of the taxpayers’ protest. BOTA noted that taxpayers’ witness McQueen acknowledged the imprecision of the county’s agricultural survey.
The testimony of PVD’s witnesses at the BOTA hearing relating to this issue was presented by Bill Roth, who believed die range sites used for soil classification were homogeneous areas, while Zoe Gehr opined the crop reporting districts were homogeneous in a geographical sense.
The BOTA order was not precise on the taxpayers’ “homogeneous” contention, as it stated generally in paragraph 16 that “[t]he Board finds that the taxpayers have presented general information and referenced various instances concerning elements of PVD’s valuation methodology, however, the taxpayers have not presented any evidence which would indicate that the subject parcels have not been valued in accordance with applicable State statutes.” We can only take this as a finding that the homogeneous element of the PVD methodology was approved by BOTA.
There is no definition of homogeneous in the statute, but our normal rules of construction require words to be given their ordinary meaning. Matjasich v. State Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001). “Homogeneous” is defined as “[o]f the same or similar nature or kind.” Webster’s II, New Riverside University Dictionary 589 (1984). Counties comprising crop reporting district C-50 have a similar geographical location, as each is located in Central Kansas, but in respect to productivity the district is not uniform, with the Flint Hills being on the eastern boundaries and short grass country found on the western boundary. The PVD’s testimony explains that these differences are made “homogeneous” by the usage of the grazing index and the adjustments it makes.
When we look at the legislative language we see that PVD may utilize counties or homogeneous regions upon which to base “net income.” The taxpayers’ own witness, Mr. Kueck, admitted that even counties are not completely homogeneous insofar as productivity and other factors could cause different rental rates of two pastures directly adjacent to each other.
We conclude there was substantial evidence to uphold BOTA’s findings that PVD was following statutory guidelines in utilizing the districts into which KAS has divided the state of Kansas for purposes of gathering valid statistical information. To limit the mass appraisal system to only a county-by-county approach was not legislatively required and would be an extremely expensive proposition. We rely on BOTA’s expertise in examining PVD’s actions and finding it met the statutoiy requirements of K.S.A. 79-1476.
We will also consider the taxpayers’ contention that net income for a parcel of property must be derived from actual and not potential income of the agricultural land. It is clear that PVD’s formula does incorporate an actual average gross rental income in calculating use value, but there is a question as to whether K.S.A. 79-1476 is limited only to the utilization of actual rental figures. The taxpayers’ argument is based on that portion of K.S.A. 79-1476 which states:
“The net rental income normally received by the landlord from pasture or range-land within each county or homogeneous region shall be used as the basis for determining agricultural income from such land. The net rental income from, pasture and rangeland which is normally received by the landlord shall be determined by deducting expenses normally incurred from the gross income normally received by die landlord.” (Emphasis added.)
Taxpayers’ contention is similar to those raised by Representative Mollenkamp in his request for the Attorney General’s opinion which we have referred to previously. As we have previously stated, such an opinion is at times persuasive but is not binding on this court. City of Junction City v. Cadoret, 263 Kan. 164, 173, 946 P.2d 1356 (1997). In that opinion, the usage of the “quality” of the soil as a basis for determining classification was approved. The PVD procedure was approved, and the opinion stated that “it appears to adequately derive median value for various types of land.” Att’y Gen. Op. No. 89-63.
Net rental income normally received is to be used as the basis for valuing pasture and rangeland, and it is calculated by deducting expenses normally incurred from gross income normally received. K.S.A. 79-1476. If read in isolation, this portion of the statute could bring into doubt the PVD’s use of soil quality in addition to average actual gross income as a basis for valuing grassland. However, it is the duty of this court to construe several provisions of an Act to gether, “with a view of reconciling and bringing them into workable harmony.” State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).
K.S.A. 79-1476 requires that the PVD develop a classification system for all land from criteria established by the SCS and that valuations be established upon “the inherent capabilities of such land.” The statute also requires that net income “for every land class” be capitalized in calculating a taxable value. (Emphasis added.) Hence, the required calculation of gross income “normally received” by landlords in a county or homogeneous region can and must be reconciled with the statute’s earlier requirement that all agricultural land be classified. The PVD has made an effective attempt to accomplish both of these requirements by first classifying land by quality, then calculating the average actual gross income received by landlords per crop reporting district. The average actual gross income is multiplied by a weighted average system developed from the soil quality classification to reach the “normal” gross income.
Taxpayers’ request that actual gross rental income be used in determining “normal gross income” is actually neither less nor more precise that the manner PVD has developed. While we have previously stated the deference which is to be given to administrative agencies, we again set forth our obligation to allow operative construction in cases such as this. We recently said in McTaggert v. Liberty Mut. Ins., 267 Kan. 641, 645, 983 P.2d 853 (1999):
“ ‘The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. . . . Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.’ [Citation omitted.]”
Once again, we emphasize that when called upon to develop a system of mass appraisal PVD was required to develop a system which unfortunately lost individualized treatment of the determination of use value. We agree with the 1989 opinion of the Attorney General. The PVD formula combines the sampling and polling done by KAS of actual received rental income for property within the district polled with the grazing index from which a sufficiently accurate net rental income is obtained to be utilized in the process of determining the use value of pastureland.
We do not find there to be sufficient merit in the taxpayers’ argument that the entire PVD methodology must be struck down based on the statutory reference to land class. Taxpayers contend this relates only to native and tame pasture and dry and irrigated cultivated land. The PVD contends that land class has a dual meaning referring to both use classes as well as productivity classes.
K.S.A. 79-1476 states:
“A classification system for all land devoted to agricultural use shall be adopted by the director of property valuation using criteria established by the United States department of agriculture soil conservation service. For all taxable years commencing after December 31, 1989, all land devoted to agricultural use which is subject to the federal conservation reserve program shall be classified as cultivated diy land for the purpose of valuation for property tax purposes pursuant to this section.”
The first sentence envisions developing classes of land based on agricultural quality as the PVD has done by using soil types to classify and value similar areas of property. The second sentence justifies the taxpayers’ argument, as it speaks of classifying Conservation Reserve Program land as cultivated dry land.
Actually, the PVD uses productivity to classify land and also appears to utilize different classifications as to land usage. We do not believe either to be improper.
When originally enacted in 1985, K.S.A. 79-1476 did not include the following sentence: “For all taxable years commencing after December 31, 1989, all land devoted to agricultural use which is subject to the federal conservation reserve program shall be classified as cultivated dry land for the purpose of valuation for property tax purposes pursuant to this section.” See L. 1985, ch. 314, § 1. That language was not added until 5 years later. See L. 1990, ch. 347, § 1. Hence, “classifications” did not encompass use classes in the original 1985 enactment.
We hold that a reasonable interpretation of the statute supports a dual meaning of classification and land classes. It is illogical to limit the classification system to land usage when the statute required the PVD to adopt a classification system based on soil composition as developed by the expertise of the Soil Conservation Service.
We do not give the credence requested by the PVD to the failure of the legislature to amend the specific provisions of 79-1476 as a total vindication of each and every portion of the methodology developed. This does, however, point out that mass appraisal and reappraisal are issues much better handled by legislative action and the expertise of administrative agencies than by the courts of our state.
If taxpayers desire to force the changes which they champion here, we believe the proper forum is legislative action as has apparently been attempted based on the failed amendment from 2000 which we previously discussed. Adoption by the court of the taxpayers’ arguments would totally upset the current appraisal procedures. Based on the limited and conflicting evidence presented, BOTA reached a result in its resolution of this taxpayer appeal that must be approved.
Finally, although we have not chosen to resolve this appeal on the failure of the taxpayers to provide any specific evidence of the actual values which they contend should have been applied to their property, such argument would likewise require that the BOTA decision be approved.
Affirmed.
Davis, J., not participating.
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Per Curiam:
This is an uncontested attorney discipline case filed by the office of the Disciplinary Administrator against the Respondent, Stephen Paul Flack, an attorney licensed to practice law in the state of Kansas. The complaints alleged that the Respondent violated KRPC 1.4(b) (2000 Kan. Ct. R. Annot. 320) (communication); KRPC 1.5(a) (2000 Kan. Ct. R. Annot. 330) (fees); KRPC 1.14(a) (Kan. Ct. R. Annot. 359) (client under disability); KRPC 1.15(b) (2000 Kan. Ct. R. Annot. 360) (safekeeping property); KRPC 1.16(d) (2000 Kan. Ct. R. Annot. 371) (declining or terminating representation); KRPC 5.3(b) and (c) (2000 Kan. Ct. R. Annot. 404) (responsibilities regarding nonlawyer assistants); KRPC 5.5(b) (2000 Kan. Ct. R. Annot. 406) (unauthorized practice of law); KRPC 7.3(b) and (c) (2000 Kan. Ct. R. Annot. 412) (direct contact with prospective clients); and KRPC 8.4(c), (d), and (g) (2000 Kan. Ct. R. Annot. 420) (misconduct). Respondent stipulated to the facts as alleged in the formal complaint and the supplement to the formal complaint, as well as to the violations of the respective rules of Kansas Rules of Professional Conduct. The Disciplinary Administrator recommended to the hearing panel (panel) a 2-year supervised probation with a public censure.
FACTS:
Respondent entered into a services agreement with ALMS, Ltd., a Dallas, Texas, company whereby he agreed to have ALMS, through its client service representatives and other affiliations, send mass mailings to a targeted group of residents in Kansas and Missouri soliciting trust, will, power of attorney, and asset transfer document preparation and other services to be performed by Respondent as an attorney licensed in Kansas and Missouri. Respondent knew that ALMS was affiliated with Addison Group and Addison Insurance Marketing, both of Dallas, Texas, and Advanced Legal Systems. Respondent also knew that the four entities had offices in Leawood, Kansas.
Under the service agreement with ALMS, Respondent paid on a weekly basis for each verified appointment with a prospective client made by ALMS or the client service representative. Respondent knew that the client service representatives used his name and acted on his behalf while they were employed either by AT.MS, Addison Group, Addison Insurance Marketing, or Advanced Legal Systems. The client service representative collected an attorney fee of $1,995 from prospective clients. Of the $1,995 attorney fee, Respondent paid $1,745 per completed trust to ALMS.
Respondent did not know the identity of the people on ALM’s mailing fist and was unaware of a client’s existence until after the client services representative had interviewed the prospective client, secured his or her signature, and collected the attorney fee from the client. Respondent knowingly authorized ALMS and the client service representatives to use his name to conduct client interviews; provide explanations of the different types of trusts, wills, powers of attorney and other legal documents; and obtain signatures and attorney fees prior to Respondent knowing the identity of the client. ALMS prepared and printed all the marketing material as well as the forms for the trust, will, and power of attorney documents in the name of Respondent. The materials were later sent to Respondent for his use.
The client service representatives were nonlawyers and were employed and trained by ALMS, Addison Group, or Advanced Legal Systems. Respondent exercised little or no supervision over the client services representatives.
Complaint of Coleene Partain
On January 4, 2000, John Thomsen, an ALMS client service representative, went to die home of Coleene Partain, 68 years of age and widowed. Partain had responded to the unsolicited mailing of Respondent concerning estate planning for the purpose of avoiding probate. Respondent’s mailing did not state “Advertising Material.” Thomsen obtained Partain’s signature on a disclosure statement and agreement; acquired financial information concerning insurance, real estate, and stocks; provided advice and explanations of the various legal instruments offered by Respondent, and collected a check for $1,995 for attorney fees payable to Respondent. Thomsen advised Partain that another service representative would deliver completed estate planning documents and review them with her.
The following month, Marcel Fenech, Vice President of Marketing for ALMS and Vice President of Addison Insurance Marketing, Dallas, Texas, brought and reviewed with Partain a completed living will, pour-over will, revocable living trust, and two powers of attorney prepared by Respondent. Fenech took Partain to a bank. He instructed Partain to sign the legal instruments that were then witnessed and notarized by bank employees. On the same day, Fenech advised Partain to sign, and Partain did sign, a consultation request authorizing Addison Group to liquidate Partain’s financial assets and transfer them to a brokerage account in California. Fenech advised Partain to liquidate her $82,000 Individual Retirement Account, $19,000 in General Electric stock, $42,000 in State Farm Insurance, and her Mobil Oil stock and to transfer the money to an annuity purchased from Sidney Mondschein, a financial planner in California known by Respondent.
Respondent was fully aware that Thomsen and Fenech attended the meetings with Partain, that Thomsen and Fenech solicited Partain to transfer assets, and that Thomsen and Fenech delivered legal documents and obtained execution of the trust and related documents. At no time did Respondent meet Partain.
Complaint of Ina Grimes
John Karstetter, an ALMS client service representative, went to the home of Ina Grimes, a widow, 82 years of age who had responded to the unsolicited mailing of Respondent concerning es tate planning. Respondent’s mailing did not state as required that it was “Advertising Material.”
Karstetter advised Grimes regarding a trust and other estate planning instruments. Karstetter stated to Grimes that she could save $6,000 in probate costs. Karstetter recommended that Grimes engage Respondent to prepare the trust and other estate planning documents. Karstetter explained Respondent’s document, Disclosure Statement and Agreement, and then had Grimes initial and sign the document. Grimes gave Karstetter a check in the amount of $1,995 made payable to Respondent.
At no time did Respondent personally meet or counsel Grimes as to her estate planning needs.
Complaint of Marjorie Jennings
Jennings is a 72-year-old widow who lives in Wichita, Kansas. A client service representative, Jackson, made an unsolicited telephone call to Jennings and attempted to convince Jennings to permit Shawn Schoelen, another client service representative, to visit with her concerning wills, living trusts, and other legal matters. Jackson provided Jennnings with Respondent’s telephone number. Jennings received an unsolicited mailing from Respondent concerning estate planning and the means to avoid probate. Respondent’s mailing did not state as required “Advertising Material.”
Complaint of Camille Nohe
On May 25, 2000, Karstetter met with Virginia Jean King at her residence in Topeka, Kansas. King was 81 years of age, a widow, and visually impaired. King had responded to the unsolicited mailing of Respondent concerning estate planning for the purpose of avoiding probate. Respondent’s mailing did not state as required “Advertising Material.”
On May 25, 2000, Karstetter obtained King’s signature on an engagement letter, provided advice and explanations of various legal instruments, reviewed her assets, and collected a check for $2,495 payable to Respondent.
On July 13, 2000, Respondent advised the office of the Disciplinary Administrator that he severed his relationship with ALMS and would not accept any new clients through ALMS from that date. On August 7, 2000, Brad Toburen, a client service representative for Respondent, Advanced Legal Systems, and ALMS, brought to and reviewed with King a completed living will, pour-over will, revocable living trust, durable power of attorney for health care decisions, and a quitclaim deed on her home, which had been prepared by Respondent. Toburen represented to King that he was there so fhat she would execute and sign the trust and he would notarize it.
Supplement to the Formal Complaint
Mary Lou Turpin, a widow, received an unsolicited mailing for estate planning services from Respondent and Advanced Legal Systems. On September 10, 1999, Thomsen, a client service representative, visited with Turpin at her home in Atchison, Kansas. Following the viewing of a videotape prepared by Respondent and a presentation by Thomsen explaining estate planning instruments, Turpin signed an engagement letter and gave Thomsen a check for $1,995 for Respondent’s legal fees. Brenda Myers, a daughter of Turpin, was present with her mother on September 10,1999, during the playing of Respondent’s videotape and Thomsen’s presentation.
In November of 1999, Turpin’s health deteriorated, and she was hospitalized. Family members of Turpin called Respondent and Advanced Legal Systems and informed them of Turpin’s hospitalization and declining health. James Parker, representing Respondent and Advanced Legal Systems, came to the hospital with a revocable living trust agreement, last will and testament, and business and health care powers of attorney forms. Because Turpin was incapacitated, Parker advised Myers that since she was going to have the power of attorney, she could execute and sign the legal documents on behalf of her mother. Myers signed the trust, will, and powers of attorney as Parker instructed. Respondent took no action to protect Turpin’s legal interests as to her estate after being informed of her medical and mental disability.
Myers and her family retained Larry Mears, an attorney, to probate Turpin’s estate. Mears, on behalf of Turpin’s heirs, made a demand for the return of $1,995 for legal fees and payment to cover the costs associated with the intestate probate of the estate. Respondent failed to respond to Mears’ letter, failed to return the $1,995 to Turpin’s estate, failed to assist in the probate of the estate, and failed to take steps to the extent reasonably practicable to protect Turpin’s estate.
Disciplinary Proceeding
At the hearing on this matter, Respondent stipulated to the facts and violations contained in the formal complaint and in the supplement to the formal complaint. Respondent, through counsel, requested that he be placed on probation. Respondent had previously provided a proposed probation plan to the hearing plan. The Deputy Disciplinary Administrator concurred with the recommendation for probation and requested that Respondent be publicly censured and placed on supervised probation.
We note that during the time the Respondent was associated with ALMS and associated companies, Respondent was covered under a professional liability insurance policy. The policy was issued by Interlex Insurance Company. Respondent continues to be covered under this policy. Respondent, ALMS, and its associated companies have made restitution to the following individuals in the following amounts and dates:
Margaret E. Barr $2,495 September 25, 2000
Benny Gray $2,495 August 27, 2000
Elizabeth Grice $2,495 November 22, 2000
Leroy Higdon $1,300 September 9, 2000
Jean King $2,495 August 15, 2000
Herbert Markley $2,495 August 5, 2000
Edward McGinness $2,495 July 26, 2000
Bernard Oots $1,250 September 9, 2000
J.E. Rogers $1,250 July 28, 2000
Lindy Scheuerman $2,495 September 9, 2000
Willis Smith $2,495 August 5, 2000
Charles Sutton $2,495 August 27, 2000
Mabell Toms $2,495 August 19, 2000
Estate of Mary Lou Tuqpin $1,995 January 8, 2001
William Weaver $2,495 September 9, 2000
Leonard Werner $2,495 September 9, 2000
Throughout the disciplinary investigation and prosecution, Respondent fully cooperated with the disciplinary authorities.
The Panel’s Conclusions
KRPC 1.4(b) (2000 Kan. Ct. R. Annot. 320) provides that attorneys shall explain a matter to the extent reasonably necessary to permit clients to make informed decisions regarding the representation. The use of the word “shall” in the rule imposes a positive duty to communicate with clients. Neither providing a client with the attorney’s telephone number so that the .client may initiate a contact with the attorney nor a client’s meeting with nonattorney staff from the attorney’s office fulfills this duty, where the attorney has neither met with nor consulted with the client. An attorney must maintain a direct relationship with the client. See State v. Barrett, 207 Kan. 178, 184, 483 P.2d 1106 (1971). Because Respondent’s clients received no explanation from Respondent about their estate plans based upon their individual circumstances, the panel concluded that Respondent violated KRPC 1.4(b).
KRPC 1.5(a) (2000 Kan. Ct. R. Annot. 330) requires that a lawyer’s fees be reasonable. Based on Respondent’s stipulation, the hearing panel concluded that the attorney fees charged by Respondent were unreasonable.
KRPC 1.14(a) (2000 Kan. Ct. R. Annot. 359) provides, in part, that when a client’s ability to make considered decisions in connection with the representation is impaired, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Respondent knew that Turpin was impaired and he had a duty to maintain a normal client-lawyer relationship with her, meaning a duty to abide by her estate planning objectives as far as reasonably possible. Respondent violated KRPC 1.14(a) when he failed to implement Turpin’s estate plan.
KRPC 1.15(b) (2000 Kan. Ct. R. Annot. 360) provides that upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in the rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and shall promptly render a full accounting regarding the property. Because Respondent failed to promptly deliver to the estate of Turpin $1,995 that the estate was entitled to receive, the panel concluded that Respondent violated KRPC 1.15(b).
KRPC 1.16(d) (2000 Kan. Ct. R. Annot. 371) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests. Because Respondent failed to timely refund the $1,995 in attorney fees to Turpin’s estate, the panel concluded that he violated KRPC 1.16(d).
KRPC 5.3 (2000 Kan. Ct. R. Annot. 404) provides, in part:
“With respect to a nonlawyer employed or retained by or associated with a lawyer:
“(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that die person’s conduct is compatible widi die professional obligations of the lawyer; and
“(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) die lawyer orders or, widi the knowledge of the specific conduct, ratifies die conduct involved; or
(2) die lawyer is a partner in die law Arm in which die person is employed, or has direct supervisoiy authority over the person, and knows of die conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
The panel recognized that attorneys often delegate certain tasks to nonlawyers. “Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.” 207 Kan. at 184. The panel noted that the comment to KRPC 5.3 provides:
“Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whedier employees or independent contractors, act for die lawyer in rendition of the law yer s professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.” (Emphasis added.)
The panel concluded that Respondent violated KRPC 5.3(b) and KRPC 5.3(c) when he failed to properly supervise the client service representatives and when he failed to assure that the actions of the client service representatives were compatible with his professional obligations as a lawyer.
KRPC 5.4(a) (2000 Kan. Ct. R. Annot. 405) prohibits attorneys from sharing legal fees with a nonlawyer. In analyzing the reason for this prohibition, the panel quoted Commission on Professional Ethics v. Lawler, 342 N.W.2d 486, 488 (Iowa 1984), where the Iowa Supreme Court stated:
“A rationale advanced for the prohibition against sharing fees with laypersons, beyond the obvious observation that fee splitting encourages laypersons to practice law, has been stated as follows:
“ ‘The underlying purpose of regulating the practice of law is not so much to protect the public from having to pay fees to unqualified legal advisors as it is to protect the public against the often drastic and far reaching consequences of their inexpertlegal advice.’ ” (Quoting In re Baker. 8 N.J. 321, 339, 85 A.2d 505 [1951].)
Here, Respondent received $250 of the $1,995 or $2,495 collected for attorney fees. Accordingly, the panel concluded that Respondent violated KRPC 5.4(a) when he shared legal fees with the client service representatives, ALMS, and associated companies.
KRPC 5.5(b) (2000 Kan. Ct. R. Annot. 406) provides that attorneys shall not assist nonlawyers in the unauthorized practice of law. The Kansas Supreme Court has the inherent power to define and regulate the practice of law. What constitutes the unauthorized practice of law is determined on a case-by-case basis. State ex rel. Stephan v. Williams, 246 Kan. 681, 689, 793 P.2d 234 (1990). This court has repeatedly recognized the actions of counseling and advising clients on their legal rights and rendering services requiring knowledge of legal principles are included within the definition of practicing law. State ex rel. Stovall v. Martinez, 27 Kan. App. 2d 9, 11-12, 996 P.2d 371 (2000). The client service representatives engaged in the unauthorized practice of law because their activities involved counseling and advising clients on their' legal rights and rendering services requiring knowledge of legal principles. Therefore, the panel concluded that Respondent assisted the client service representatives in the unauthorized practice of law in violation of KRPC 5.5(b).
KRPC 7.3(b) (2000 Kan. Ct. R. Annot. 412) provides, in part, that a lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise specifically prohibited in the Rules if the prospective client has made known to the lawyer a desire not to be solicited by the lawyer or the solicitation involves coercion, duress, or harassment. Subsection (c) of KRPC 7.3 provides that every written communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal service in a particular matter and with whom the lawyer has not family or prior professional relationship shall include the words “Advertising Material” on the outside envelope and at the beginning and ending of any recorded communication. The panel concluded that Respondent violated KRPC 7.3(b) because the solicitations were targeted at the elderly population. Additionally, the panel concluded that Respondent violated KRPC 7.3(c' ’ len he failed to include the words “Advertising Material” on ti utside envelope of the mailings.
KRPC 8.4(c) (20, Kan. Ct. R. Annot. 420) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Subsection (d) of KRPC 8.4 states that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice, and subsection (g) provides that it is misconduct for a lawyer to engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law. Here, the panel concluded that Respondent violated KRPC 8.4(c) when he became associated with the fraudulent activities of ALMS. The panel concluded that Respondent violated KRPC 8.4(d) when he failed to assist in the probate of Turpin’s estate and that he violated KRPC 8.4(g) when he allowed the client service representatives to use his name to give credibility to the fraudulent activities of ALMS and associated companies.
Based on the stipulated evidence, the panel concluded that Respondent engaged in misconduct in violation of KRPC 1.4(b) (2000 Kan. Ct. R. Annot. 320) (communication); KRPC 1.5(a) (2000 Kan. Ct. R. Annot. 330) (fees); KRPC 1.14(a) (2000 Kan. Ct. R. Annot. 359) (client under a disability); KRPC 1.15(b) (2000 Kan. Ct. R. Annot. 360) (safekeeping property); KRPC 1.16(d) (2000 Kan. Ct. R. Annot. 371) (terminating representation), KRPC 5.3(b) and (c)(2000 Kan. Ct. R. Annot. 404) (responsibilities regarding non-lawyer assistants); KRPC 5.4 (2000 Kan. Ct. R. Annot. 405) (professional independence); KRPC 5.5(b) (2000 Kan. Ct. R. Annot. 406) (unauthorized practice of law); KRPC 7.3(b) and (c) (2000 Kan. Ct. R. Annot. 412) (direct contact with prospective clients); and KRPC 8.4(c), (d), and (g)(2000 Kan. Ct. R. Annot. 420) (misconduct).
The Panel’s Recommendations
The panel, in a well-reasoned and articulate opinion, set forth its reasons for recommending probation as the appropriate discipline for Respondent. The panel found that this case epitomizes the pitfalls inherently involved when attorneys associate themselves with for-profit companies which solicit legal business and use non-lawyer personnel to perform client interviews and counseling. For example, an attorney in In re Thrasher, 661 N.E.2d 546 (Ind. 1996), was suspended from the practice of law after becoming involved in a similar situation in the area of bankruptcy practice. Under the arrangement in Thrasher, nonlawyers met with clients and prepared bankruptcy petitions, which were signed by the attorney even though the attorney had not consulted with the clients. The Thrasher court provided a helpful description of the problems involved in these types of associations:
“The respondent appeared in a case as counsel of record when, in fact, a nonlawyer provided all legal advice to the client, drafted the pleadings, and collected the fee. The respondent’s signature on the bankruptcy petition was a complete sham, apparently intended only to serve as the affirmation needed to get the bankruptcy court to accept the pleadings. That the respondent may have intended to actually provide representation to the client at some point after the petition was filed is irrelevant. The risks inherent in arrangements such as this one could not be more clearly illustrated than by the events that later unfolded in this case. The client received incompetent legal representation that threatened complete destruction of his cause of action. The respondent ultimately found himself faced with monetary sanctions and a disciplinary action. The bankruptcy court was needlessly burdened with nonmeritorious pleadings. It is essential to the integrity of any legal practice that lawyers maintain independent professional judgment and not fully abdicate the responsibility of providing legal advice, guidance and expertise to nonlawyers. For the protection of the public and the profession, the privilege of providing legal services to others is entrusted only to those who are duly licensed to practice law.” 661 N.E.2d at 549.
Here, the panel noted that the ALMS materials reflect consciousness of ethical standards and seek to avoid violations through client disclosures and consents. For example, the agreement entitled “Disclosure Statement and Agreement” advises that the “Client Service Representative is not a licensed attorney and all questions related to your estate planning options should be directed to the attorney.” Also, in the same agreement, the client is asked to initial the statement “the Client understands that the Client Service Representative has not and will not provide legal or tax advice.” The foregoing and similar disclosures and consents do not reheve an attorney from his or her duties to abide by the applicable rules of professional conduct.
In making recommendations for discipline, the panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991). Pursuant to Standard 3, the panel considered 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. Respondent violated duties to his clients, to the legal profession, and to the public.
Mental State. Respondent knowingly violated his duties to his clients, to the legal profession, and to the public.
Injury. The Respondent’s clients and the legal profession suffered actual injury as a result of Respondent’s misconduct.
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 panel found the following aggravating factors present: (1) Respondent engaged in a pattern of misconduct by failing to communicate with numerous clients and by failing to adequately supervise nonlawyers on a number of occasions. (2) Respondent violated multiple Rules. (3) Respondent’s clients were elderly widowed women who were particularly vulnerable to the misconduct in this case.
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 panel found the following mitigating circumstances: (1) Respondent has not previously been disciplined. (2) Respondent has paid over $30,000 in restitution as of the date of the hearing. Although Respondent offered to make restitution to the estate of Turpin on January 28, 2000, the payment was not forthcoming until January 8, 2001. The panel found, in regard to the estate of Turpin, the restitution was not timely made. However, in each of the other cases, the panel found that the restitution was timely made. (3) Throughout the disciplinary investigation and prosecution, Respondent fully cooperated with the disciplinary authorities. (4) Respondent was admitted to the practice of law in 1995. As such, at the time the misconduct occurred, Respondent had been practicing law for approximately 4 years. (5) The letters submitted by Respondent from his friends and colleagues indicate that Respondent enjoys a good reputation in his community.
In addition to the previously cited factors, the panel thoroughly examined and considered Standard 5.13, which provides, in part: “Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”
The panel found that the misconduct of Respondent was serious and that the Standards would support the suspension of Respondent from the practice of law for a period of time. However, be cause Respondent had ceased his affiliation with ALMS and associated companies and because of the mitigating factors found, the panel determined that suspension was not warranted.
At the hearing, the panel reviewed Respondent’s proposed plan of probation. The panel requested that the parties make certain additions and modifications to the plan of probation. Thereafter, on February 12,2001, with the approval of the Deputy Disciplinary Administrator, Respondent provided the panel with an amended proposed probation plan. After considering the amended proposed probation plan, the panel unanimously recommended to this court, in accordance with the Deputy Disciplinary Administrator’s recommendation, that Respondent be publicly censured and be permitted to continue to practice law, subject to certain terms and conditions of supervised probation.
After this case was set on this court’s docket, the Disciplinary Administrator revised the recommendation for discipline because on April 11, 2001, a subsequent complaint was filed with the office of the Disciplinary Administrator alleging that Respondent engaged in conduct similar to the conduct which provided the basis of the formal complaint. If the allegations are true, the conduct of Respondent would also be in violation of the terms and conditions of Respondent’s proposed plan of probation. On July 13, 2001, the Review Committee of the Kansas Board for Discipline for Attorneys found sufficient evidence to support a finding of probable cause for violations of the Kansas Rules of Professional Conduct in the additional complaint, which involves allegations of misconduct filed by Mary Donnell-Brown.
Complaint of Donnell-Brown
Donnell-Brown alleged that her parents, Wilbert and Ruby Luetjen, received an unsolicited mailing to attend an “Estate Planning Workshop” on April 4, 2001, conducted by CLA USA in Warsaw, Missouri. As a result of attending the workshop, Dennis P. Huff, Account Representative for CLA USA met later the same day with her and her parents at the Luetjen residence. At the meeting, Huff provided the business card of Respondent to the Luetjens, advising them that Respondent would be the lawyer to prepare their trust documents. The mailing from CLA USA that the Luetjens responded to did not indicate that it came from an attorney.
Donnell-Brown claims that Huff pressured her parents to make a decision that CLA USA would “take care of everything without her parents having to meet with an attorney.” Also, according to Donnell-Brown, Huff provided advice to the Luetjens concerning trust instruments and die means to avoid estate taxes and probate. Huff further informed the Luetjens that Respondent would prepare the trust documents, but that it was not necessary for them to meet with him. Respondent has never met or talked with the Luetjens.
The Disciplinary Administrator withdrew its support of Respondent’s 2-year plan of supervised probation. The revised recommendation of the Disciplinary Administrator was that Respondent receive the sanctions of 1-year suspension from the practice of law and published censure.
On September 5, 2001, prior to oral argument, Respondent and the Disciplinary Administrator amended their recommendations to this court based on additional information provided by Respondent. The parties recommended that Respondent be suspended from the practice of law for a period of 6 months and Respondent be placed on a 2-year period of supervised probation upon Respondent’s reinstatement to practice law.
Recommendations as to the type of discipline from either a hearing panel or the Disciplinary Administrator are advisory only, and this court may impose a greater or lesser sanction as deemed appropriate. Kan. Sup. Ct. Rule 212(f) (2000 Kan. Sup. Ct. R. Annot. 254).
DISCIPLINE IMPOSED:
The court, having considered the record herein and reports of the hearing panel, concurs in the findings, conclusions, and recommendation of the panel.
It Is Therefore Ordered that imposition of discipline against Respondent, Stephen Paul Flack, be suspended and that he be placed on probation for a period of 2 years from this date on the terms and conditions hereinafter set out:
1. Respondent shall not associate with ALMS or associated businesses.
2. Within 60 days of the final hearing report , Respondent shall contact all clients who engaged his legal services though ALMS or associated businesses and who paid Respondent attorney fees. Respondent shall notify each of these ' clients that Respondent is no longer affiliated with ALMS or associated companies. If the clients desire, Respondent shall (1) determine whether the clients received appropriate representation, (2) return the attorney fees paid, and (3) provide appropriate representation.
3. Respondent shall timely and appropriately respond to requests for restitution made by clients obtained through ALMS and associated companies. Restitution may include return of attorney fees paid as well as payment for any injuries suffered as a result of Respondent’s association with ALMS or associated companies.
4. Respondent shall continue to maintain professional liability insurance.
5. In addition to die standard requirement of 12 continuing legal education hours, Respondent shall successfully complete the New Lawyer Practical Skills Program developed pursuant to Kansas Supreme Court Rule 802A (2000 Kan. Ct. R. Annot. 540) during die first year of Respondent’s probation.
6. Respondent shall refrain from violating the Kansas Rules of Professional Conduct.
7. Respondent shall be supervised by William G. Hammond, a duly licensed Kansas attorney. While serving as Respondent’s supervising attorney, Mr. Hammond shall act as an agent of the court and, accordingly, be afforded die immunities granted by Rule 223 (2000 Kan. Ct. R. Annot. 283). Mr. Hammond shall meet with Respondent biweekly. Mr. Hammond shall have access to Respondent’s files, employees, and trust account. Mr. Hammond shall monitor die following: (1) whether Respondent continues to refrain from associating with ALMS and associated companies, (2) wliedier Respondent contacted each client obtained dirough ALMS and associated companies, informed diem that he is no longer associated with ALMS and associated companies, and offered to determine whether die clients received appropriate representation, offered to return the attorney fees paid, and offered to provide appropriate representation, (3) wliedier Respondent has timely and appropriately responded to requests for restitution from clients obtained dirough ALMS and associated companies, (4) wliedier Respondent has current professional liability insurance, (5) whetiier Respondent has successfully completed die New Lawyer Practical Skills Program developed pursuant to Rule 802A, and (6) wliedier Respondent has engaged in violations of the Kansas Rules of Professional Conduct. Mr. Hammond shall report to the Disciplinary Administrator on a quarterly basis regarding the items listed above. Mr. Hammond shall immediately report any material deviation from proper practice to the Disciplinary Administrator.
It Is Further Ordered that costs are to be assessed against Respondent in the amount certified by the office of the Disciplinary Administrator.
It Is Further Ordered that if Respondent fails to abide by the conditions set forth herein, a show cause order shall issue to Respondent, and we will take whatever disciplinary action appears just and proper without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that costs herein be assessed to Respondent. | [
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|
The opinion of the court was delivered by
Davis, J.:
This case comes before us on the State’s petition for review concerning the limited issue of whether the defendant’s conviction for aggravated kidnapping and his conviction of one of two counts of rape or the one count of aggravated criminal sodomy are multiplicitous as found by the Court of Appeals in an unpublished opinion filed December 17, 1999.
In the afternoon of December 7, 1996, defendant Ray F. Garcia visited the home of A.L.R., age 56, and her husband LeRoy, age 65. The defendant had previously visited their home on “many occasions” to see LeRoy, who repaired and sold bicycles in his spare time.
During the early morning hours of the following day, A.L.R. was awakened when she felt something brush up against her arm. The room was dark and A.L.R. could only make out shadows. A.L.R. turned on a light and saw a person bending over at the foot of the bed. The intruder told A.L.R. to turn off the light and pull the covers over her head. A.L.R. testified that she recognized Garcia’s voice immediately.
The intruder asked LeRoy where his money was. When LeRoy did not reply, A.L.R. told the intruder that it was on the bedside table. The intruder then asked about A.L.R.’s money. She told him it was in her purse out in the hall. The intruder instructed A.L.R. to get out of bed and retrieve her purse. LeRoy remained in the bed. A.L.R. returned to the bedroom with her purse and the intruder pulled her up against him. The intruder began feeling A.L.R.’s breasts and buttocks while removing her pajamas. The intruder told A.L.R: to get on her knees at the foot of a twin bed that was in the room. The intruder knelt down behind A.L.R. and penetrated her vagina with his penis. The intruder then entered A.L.R.’s rectum, and finally reentered her vagina.
A.L.R. was ordered to return to bed. The intruder proceeded to remove personal property from the bedroom. The intruder asked A.L.R. if she had any tape. She told him where it was located. The intruder returned and taped the hands and feet of A.L.R. and LeRoy. The defendant was in the house for approximately 2 hours before he took A.L.R.’s car and left.
The defendant was charged with one count of aggravated burglary, two counts of rape, one count of aggravated criminal sodomy, two counts of aggravated robbery, one count of aggravated kidnap ping, and one count of kidnapping. He was found guilty on all charges.
The Court of Appeals reversed one count of aggravated robbery, vacated the defendant’s conviction for aggravated kidnapping, remanded the case to the trial court for sentencing on kidnapping, and affirmed all other convictions. The defendant’s case was remanded for resentencing. We denied the defendant’s petition for review but granted the State’s petition on the limited issue of whether the Court of Appeals was correct in its determination that the defendant’s convictions for aggravated kidnapping and one of the rape or aggravated sodomy convictions were multiplicitous and in vacating the defendant’s aggravated kidnapping conviction.
Multiplicity
In concluding that multiplicity existed the Court of Appeals stated:
“The evidence which supports tire bodily harm element of aggravated kidnapping is die commission of two rapes and a sodomy. The State charged each act of violence as a separate crime, resulting in two convictions for rape and one for sodomy. There is no other evidence of bodily harm to support die aggravated nature of die kidnapping. Under the facts of diis case, based on the allegations of the complaint and die evidence which the State was required to present, the crime of aggravated kidnapping was multiplicitous with one of die counts of rape or the sodomy.”
There is no dispute that rape (State v. Peltier, 249 Kan. 415, 418, 819 P.2d 628 [1991], cert. denied 505 U.S. 1207 [1992]) and sodomy (State v. Chears, 231 Kan. 161, 165, 643 P.2d 154 [1982]) constitute the infliction of bodily harm.
The State argues that the Court of Appeals erred in finding that multiplicity existed. The State contends that the proper test for multiplicity is based on a comparison of the elements of the crimes, and that when such a comparison is made, multiplicity is not found.
In order to examine the State’s contention, it is necessary to set forth in some detail the law in Kansas with regard to multiplicity. This has been a highly confusing subject in Kansas law, and our prior cases have not always been clear. However, when our prior cases are comprehensively examined, several rules with regard to multiplicity become apparent.
Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998). Such multiple punishments are prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992). However, the Double Jeopardy Clause’s protection against multiple punishments extends only to prevent the sentencing court from prescribing greater punishment than the legislature intended, and where a legislature specifically authorizes cumulative punishment under two statutes for the same offense, the Double Jeopardy Clause is not violated. Missouri v. Hunter, 459 U.S. 359, 366-69, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1982). The question in determining whether convictions of certain crimes are multiplicitous, therefore, necessarily hinges on what the legislature has provided. Even though certain crimes may in fact be traditionally multiplicitous, this does not prevent the legislature from specifically authorizing cumulative punishment if it chooses to do so.
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: “[U]pon 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 mul tiplicitous. 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 defendant’s conviction for aggravated kidnapping and either one of the rape convictions or the aggravated criminal sodomy conviction are not multiplicitous under the traditional “common-law” multiplicity concept, as both rape charges and the aggravated criminal sodomy charge require an element not found in the aggravated kidnapping charge. See State v. Chears, 231 Kan. at 163 (holding that aggravated kidnapping and sodomy were not multiplicitous, even though sodomy was used to supply the element of bodily harm required for aggravated kidnapping); State v. Brown, 181 Kan. 375, 389-90, 312 P.2d 832 (1957) (holding that rape, even though supplying the essential element of bodily harm required for first-degree kidnapping, was a separate and distinct offense, and the offenses were not multiplicitous).
However, the legislature added another layer to the multiplicity analysis with the passage of K.S.A. 21-3107. See State v. Freeman, 236 Kan. 274, 281, 689 P.2d 885 (1984) (noting that 21-3107 “formulates the limitations upon unfair multiplicity of convictions or prosecutions”). K.S.A. 21-3107(1) provided:
“When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.”
Thus, under K.S.A. 21-3107(1), a prosecutor is free to charge multiplicitous crimes. State v. Edwards, 250 Kan. at 329. The mere charging of multiplicitous crimes and prosecution of them is not a violation of the Double Jeopardy Clause so long as the defendant is not punished more than once for the same crime. State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
The-version of K.S.A. 21-3107(2) in effect at the time the defendant committed the crimes we now consider provided in pertinent part: “Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both.” Thus, K.S.A. 21-3107(2) adds another layer to the tra ditional merger test for multiplicity by providing that a defendant may not be convicted of both the offense charged and an included offense. See State v. Rinck, 256 Kan. 848, 849-50, 888 P.2d 845 (1995).
In Rinck, we refused to apply earlier law limiting the test for multiplicity to the traditional common-law elements test, choosing instead to follow recent law incorporating the test for included offenses under K.S.A. 21-3107. 256 Kan. at 850; see State v. Warren, 252 Kan. 169, 180-82, 843 P.2d 224 (1991) (using the included crimes framework as a test for multiplicity); see also State v. Mincey, 265 Kan. at 262-63 (recognizing that the same test is used in determining whether offenses charged in a complaint or information constitute lesser included offenses and multiple charges).
Thus, under Kansas law, crimes are multiplicitous where: (1) the crimes merge, that is, they constitute a single wrongful act, or the same evidence is required to prove both crimes; but if each offense requires proof of a fact not required in proving the other, the offenses do not merge; and (2) one offense is an included offense of the other as provided under K.S.A. 21-3107(2). As a result, the defendant’s convictions must be analyzed not only under the traditional elements test as set forth in Games but also under the legislative test for determining whether one offense is an included offense of the other.
At the time the offenses were committed, K.S.A. 21-3107(2) provided:
“An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
It is clear that neither rape nor aggravated criminal sodomy is a lesser degree, attempt, or attempt to commit a lesser degree of aggravated kidnapping. Therefore, the sole question is whether one of the rapes or the aggravated criminal sodomy is “a crime necessarily proved if the crime charged (aggravated kidnapping) were proved.” See K.S.A. 21-3107(2)(d).
Bodily harm is an essential element of aggravated kidnapping. The record supports the conclusion that in proving this element the State relied upon one of the rapes or tire aggravated criminal sodomy. In order to prove the aggravated kidnapping, the State necessarily proved that one of the rapes or the aggravated criminal sodomy occurred. In accordance with the provisions of K.S.A. 21-3107, one of the rapes or the aggravated criminal sodomy had to be proved if the crime charged, aggravated kidnapping, was to be proved. Thus, one of the rapes in this case or the aggravated criminal sodomy provided proof of the bodily harm element of aggravated kidnapping. Under these circumstances, one of the rapes or the aggravated criminal sodomy was a crime necessarily proved if the crime of aggravated kidnapping was proved and is, therefore, an included crime under K.S.A. 21-3107(2)(d).
We agree with the Court of Appeals’ determination that the aggravated kidnapping and either one of the rape convictions or the aggravated criminal sodomy conviction were multiplicitous. Under the clear provisions of K.S.A. 21-3107, the defendant’s convictions of aggravated kidnapping, as the crime charged, and one of the included crimes of either rape or aggravated criminal sodomy may not stand. Our decision finds support in two recent cases decided by this court: State v. Warren, 252 Kan. 169, and State v. Vontress, 266 Kan. 248.
In Warren, the defendant argued that his conviction for aiding and abetting aggravated battery was multiplicitous with his conviction for aiding and abetting aggravated robbery. As in the case we now consider, there was no dispute in Warren that a single wrongful act provided the basis for both charges. After a thorough analysis of the traditional multiplicity test, we concluded “that aggravated robbery and aggravated battery are multiplicitous if . . . the same act of violence provided the basis for each conviction.” 252 Kan. at 182.
In Vontresá, the defendant argued that his convictions of aggravated robbery and aggravated battery were multiplicitous in violation of the constitutional protection against double jeopardy. He argued, as does the defendant in this case, that “proof of the same act of violence, the infliction of bodily harm upon [the victim], was necessary to prove both the aggravated robbery and aggravated battery counts.” 266 Kan. at 255. In concluding that the convictions were multiplicitous and that the punishment for both crimes, was a violation of double jeopardy, we noted that the State, in order to prove the bodily harm element of the aggravated robbery, had to prove that the defendant shot the victim, and this same fact also was required to prove the great bodily harm element of aggravated battery. Thus, under the information and instructions, the aggravated battery count required proof of the fact which was also required to prove the aggravated robbery charge, and the convictions were multiplicitous. 266 Kan. at 257.
In the case at hand, the bodily harm needed to prove aggravated kidnapping was the same bodily harm supplied by one of the rape convictions or the aggravated criminal sodomy conviction. Consistent with the Court of Appeals’ decision and our decisions in Warren and Vontress, we conclude that the aggravated kidnapping conviction and one of the rape convictions or the aggravated criminal sodomy conviction are multiplicitous. We, therefore, affirm the Court of Appeals’ decision reversing the defendant’s conviction for aggravated kidnapping and remanding for resentencing on the lesser offense of kidnapping.
It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107 to essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its place, the legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an included crime is one where “all of the elements of the lesser crime are identical to some of the elements of the crime charged.” This will necessarily change the multiplicity analysis for cases which occur under the new statute and signifies a return to the identity of the elements standard that this court used prior to the enactment of K.S.A. 21-3107. Such a change, while allowing convictions for crimes which would have been multiplicitous under the statute at issue here, does not violate constitutional prohibitions against double jeopardy as it does not subject defendants to punishments greater than those intended by the legislature. See Missouri v. Hunter, 459 U.S. at 366-69.
The judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed; the judgment of the district court is affirmed in part and reversed in part, and the case is remanded for resentencing. | [
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|
The opinion of the court was delivered by
McFarland, C.J.:
In 1984, Jackie Lofton was convicted by jury trial of rape (K.S.A. 21-3502 [Ensley 1981]), kidnapping (K.S.A. 21-3420 [Ensley 1981]), and battery (K.S.A. 21-3412 [Ensley 1981]), two class B felonies and one class B misdemeanor, respectively, for which he received two 15-years to life sentences plus 6 months in the county jail. All sentences were to run consecutively. His convictions were affirmed by this court on December 6,1985, in an unpublished opinion, State v. Lofton, No. 57,500.
On February 11, 2000, defendant filed a pro se motion entitled “Motion of Nunc Pro Tunc Pursuant to K.S.A. 22-3504(1)” in which he contends his jail time credits had been improperly computed. He contends that a credit of the 7 months and 2 days he spent in jail awaiting trial on these charges should have been credited to the sentence imposed on each of the two felonies, for a total of 14 months and 4 days credit on his aggregate prison sentences.
In denying relief under the motion, the district court held that no relief could be granted under K.S.A. 22-3504(1), which provides:
“The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by tire court, to be personally present and to have die assistance of counsel in any proceeding for tire correction of an illegal sentence.”
The basis for this determination was that there was no claim that either sentence was illegal. The sentences of 15 years to life on each of the two felonies, running consecutively, were lawful sentences. Defendant’s only complaint concerns the amount of jail time which was credited to his lawful sentences. We agree with the district court.
We have defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Duke, 263 Kan. 193, 194, 946 P.2d 1375 (1997). On its face the motion filed herein clearly shows there was no claim of illegal sentence, but rather a claim that insufficient jail time was credited against the sentence imposed. There is, accordingly, no error in the district court’s summary denial of the motion herein without affording the defendant a hearing, his personal presence at the hearing, and appointment of counsel as provided by K.S.A. 22-3504(1).
The district court further held that even if the issue of the amount of jail time credit were properly before it, defendant was entitled to no additional credit. We agree. Defendant argues that the jail time credit statute, K.S.A. 21-4614, and the decision in State v. Jenkins, 10 Kan. App. 2d 8, 690 P.2d 396 (1984), mandate that he be given full jail time credit against the sentences in each felony. As there are two sentences which aggregate to 30 years to life, he argues he is entitled to credit for twice the time he was actually incarcerated in jail on the aggregate sentence. Neither the statute nor the Jenkins decision supports his position. K.S.A. 21-4614 contains no provision for credit in excess of the time an individual is actually incarcerated in jail. The Jenkins case involved a defendant who was consecutively sentenced on the same day for two felonies and then granted probation. Later, when the probation was revoked, the jail time credit was set at 37 days — the time Jenkins was incarcerated awaiting disposition of the revocation proceeding. The 20 days defendant had been incarcerated on one felony prior to sentencing and the 1 day he was so incarcerated on the other felony were held by the district court not to entitle defendant to credit on the aggregate sentence. These 21 days of incarceration were, in effect, lost as far as jail time credit. The Court of Appeals held that Jenkins was entitled to have the 20 day and 1 day incarceration aggregated and the 21 days credited to the aggregate sentence. 10 Kan. App. 2d at 10-11. Nothing in Jenkins supports defendant’s contention that he is entitled to jail time credit on his aggregate sentence for twice the number of days he was actually incarcerated.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Lockett, J.:
The Kansas Department of Human Resources (KDHR) appeals the district court’s reversal of the Secretary of KDHR’s (Secretary) finding that the personal care attendants of an injured worker receiving workers compensation benefits for an injury are employees of the injured worker; therefore, the worker is responsible for unemployment insurance taxes. The Secretary claims that (1) the injured worker is an employer subject to the Kansas Employment Security Law, K.S.A. 44-701 et seq., (2) the district court erroneously considered disputed facts not included in the agency record, and (3) the district court erred in finding that injured worker’s former employee, who accepted employment as an independent contractor, is estopped from claiming unemployment compensation benefits.
This action arose out of a cláim submitted to the Secretary for unemployment compensation by one of Rick Meier’s former personal care attendants, who identified Meier as her former employer. Meier, a quadriplegic confined to a wheelchair, contested the claim, asserting that the personal care attendant had been an independent contractor paid by his insurance carrier, Hartford Underwriters Insurance Company (Hartford). The KDHR field officer found that Meier was the employer and the claimant’s earnings were subject to Kansas unemployment insurance requirements.
Meier appealed the KDHR field determination, claiming that Hartford was responsible for payment of compensation to his attendants; therefore, he was not an “employer.” A KDHR hearing officer heard the matter on February 16, 2000.
The hearing officer noted that Meier’s injuiy rendered him a quadriplegic primarily confined to a wheelchair. Meier has some use of both arms but no fine motor coordination of the hands. Meier needs assistance getting in and out of bed, dressing, preparing and eating meals, and traveling by vehicle. Meier requires catheterization to relieve his bladder and a nurse to evacuate his bowels.
The hearing officer further found that based upon the recommendation of Meier’s treating physician, the workers compensation administrative law judge had ordered that Meier’s employer and its insurance carrier provide Meier with nursing services. The par ties stipulated that payment for nursing services, including potential tax liability under the Employment Security Law, is the responsibility of the workers compensation employer and its insurance company.
The hearing officer noted that with the approval of the workers compensation administrative law judge, Meier retained individuals to provide attendant care. As a condition of employment, the attendant signs a statement prepared by Meier acknowledging that he or she is an independent contractor. Meier directs the manner the workers perform services for him. He prepares a job description and duties fist stating his expectations. Meier prefers to hire individuals with some healthcare experience and who do not require a great deal of training.
Once a worker was retained by Meier, no substitutes are allowed to render the services. The duration of the employment varies. Meier schedules when the attendants are to arrive and depart. Some attendants work full time, others work part time. Most services are performed in Meier’s home. The work to be performed was determined by Meier. Meier provides a van and other equipment which attendants use to transport him to appointments or errands.
None of the workers hired own a business providing attendant care to the public. The workers have no discretion as to the manner the services are provided to Meier. The workers were free to have jobs separate from their work for Meier. New did. Both the worker and Meier could terminate the work relationship at will.
Hartford dictates the amount Meier is permitted to pay the attendants and the number of hours the attendants can work. Hartford pays for the advertising to locate attendant care workers.
Based on these facts, the hearing officer concluded that the former personal attendant worker had been Meier’s employee. The Secretary of KDHR affirmed the hearing officer on April 13, 2000.
Meier appealed to the Barton County District Court. The district court first determined that Meier was not the employer of his personal care attendant and the attendant was an independent contractor. The district court reversed the Secretary’s order, further finding that the worker was estopped from pursuing a claim of unemployment insurance because the worker had accepted employment as an independent contractor. The Secretary appealed to the Court of Appeals. The case was transferred to tbis court pursuant to K.S.A. 20-3018(c). Briefs have been filed by the Secretary and Hartford.
Standard of Review
The question of whether Meier is an employer under the Kansas Employment Security Law involves review of an agency’s interpretation of statutes.
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing a statute is entitled to judicial deference and is called the doctrine of operative construction. Deference to an agency’s interpretation is particularly appropriate when die agency is one of special competence and experience. Although an appellate court gives deference to the agency’s interpretation of a statute, the final construction of a statute lies widi the appellate court, and the agency’s interpretation, while persuasive, is not binding on the court. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. [Citation omitted.]” In re Appeal of United Teleservices, Inc., 267 Kan. 570, 572, 983 P.2d 250 (1999).
District Court Decision
In reversing the Secretary’s finding that Meier was an employer subject to unemployment compensation taxes, the district court reasoned:
“Mr. Meier finds [die] recent decision by die Kansas Department of Human Resources in direct conflict with his prior contact widi the State when he attempted to utilize die local employment security office to help him find people to work for him several years ago. The manager of die local employment security office told him since die people who care for him were not employees, he was not entitled to use the services of the local employment security office for purposes of locating care attendants.
“Mr. Meier has no options in having healdi care workers come in and perform daily services for him. His injuries were not voluntarily incurred by Mr. Meier. The services provided are a statutory requirement ordered by die workers’ compensation court, and as a practical matter he has to have someone help him in his daily routine.
“Hartford establishes die rate of pay to die nursing attendants, not Mr. Meier. Hartford determines die number of hours die attendants are allowed to work, not Mr. Meier. Hartford does have the authority to choose die medical providers, and/or healdi care attendants, but in this case diey have allowed Mr. Meier to pick and choose who he believes should work with him since he is the one who has to deal with them on a daily basis. If Mr. Meier were to be termed a regular businessman, or employer of other employees he would have the right to terminate his business if lie chose to do so. In this case he has no right to choose to terminate his business and/or employees because he is always going to need to have an employee as a result of an involuntary accident that occurred to him. This Court cannot believe it was the intent or it should be the interpretation of die statutes of the State of Kansas to conclude Mr. Meier is in fact an employer under diese particular facts and circumstances. He has absolutely no choice in die matter as to whedier he should have attendants to help him in his daily activities. The Court would admit Mr. Meier does exercise die control over the people once diey come to his home to help him with his daily activities. However, the issue for determination on whether he is an employer or the workers are independent contractors goes back before die worker/attendant actually comes to his home. He has no choice in the matter as to whedier diey are going to be diere. He does not determine their pay, or how much time they will work. They are nothing more tiian health care providers mandatorily required to be there because of a workers’ compensation statute or because of a contract for hire situation. These healdi care services are provided by Hartford to Mr. Meier.”
We note that evidence that Meier was denied the services of the local employment security office was not introduced during the administrative hearings.
Analysis
The Kansas Employment Security Law requires the compulsory setting aside of unemployment reserves to be used for the benefit of persons who become unemployed. The systematic accumulation of funds for this purpose is accomplished by taxing employers and placing the money into the state employment security fund. The Kansas Employment Security Law defines employment in several ways, two of which are relevant to this case. First K.S.A. 44-703(i)(l)(B) provides that “employment” means, in part, service performed by any individual who, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an employee. Second, K.S.A. 44-703(i)(3)(D) provides:
“Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the secretary that: (i) Such individual has been and will continue to be free from control or direction over tire performance of such serv ices, both under the individuáis contract of hire and in fact; and (ii) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside all of the places of business of tire enterprise for which such service is performed.”
The Secretary argues that the services performed by the personal care attendants are Meiers employees under both definitions. Meier argues that he is not the employer; he is a patient and a consumer of home health care services. Meier maintains that home health care attendants are independent contractors who Hartford hires and pays because of its statutory obligation to cure and reheve him of the effects of his injury. The persons employed by Hartford are similar to the hospitals and doctors Hartford paid while he was a hospital inpatient.
The status of “employer” designates who is responsible for certain work-related taxes, benefits, liabilities, and reporting obligations. The criteria for determining whether an employment relationship or, in the alternative, an independent contractor relationship exists vary under different contexts.
We have previously stated there is no absolute rule for determining whether an individual is an independent contractor or an employee. The facts and circumstances in each case determine the status of the individual. Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 709, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990). We note that an independent contractor is defined as one who, in exercising an independent employment, contracts to do certain work according to his or her own methods, without being subject to the control of the employer, except as to the results or product of his or her work. The primary test used by the courts in determining whether the employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished. It is not the actual interference or exercise of the control by the employer but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor. Mitzner v. State Dept. of SRS, 257 Kan. 258, Syl. ¶ 2, 891 P.2d 435 (1995). An independent contractor is one who, in the exercise of an independent employment, contracts to do a piece of work according to his own methods and who is subject to his employer’s control only as to the end product or final result of his work. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 102, 689 P.2d 787 (1984).
In Crawford, 17 Kan. App. 2d at 710, the Court of Appeals listed 20 factors used by the Secretary to determine whether an employee-employer relationship exists. The factors include:
“1) [t]he existence of the right of the employer to require compliance with instructions;
“2) the extent of any training provided by the employer;
“3) the degree of integration of the worker s services into the business of the employer;
“4) the requirement that the services be provided personally by the worker;
“5) the existence of hiring, supervision, and paying of assistants by tire workers;
“6) die existence of a continuing relationship between the worker and the employer;
“7) die degree of establishment of set work hours;
“8) the requirement of full-time work;
“9) die degree of performance of work on die employer’s premises;
“10) die degree to which the employer sets die order and sequence of work; “11) die necessity of oral or written reports;
“12) whedier payment is by the hour, day or job;
“13) the extent to which die employer pays business or travel expenses of the worker;
“14) die degree to which die employer furnishes tools, equipment, and material;
“15) die incurrence of significant investment by the worker;
“16) the ability of the worker to incur a profit or loss;
“17) whether the worker can work for more dian one firm at a time;
“18) whedier the services of die worker are made available to the general public;
“19) whedier die employer has the right to discharge the worker; and
“20) whether die employer has the right to terminate the worker.”
The Crawford court stated that the above factors are to be considered as a whole with a particular emphasis placed on the employer’s right to control the worker. 17 Kan. App. 2d at 713.
We agree with the district court that Meier states a compelling public policy argument in urging this court to find that the personal care attendants are independent contractors of Hartford, rather than his employees. Meier asserts that if this court determines that he is the employer of the personal care attendants, Hartford, which pays the wages of the attendants, could assume control of the hiring and firing of the attendants, thereby shifting much of the “control” aspect of the attendants’ employment to Hartford. Meier claims that Hartford could advertise, contract directly with the attendants, and schedule the hours the attendants work. He argues that this approach is contrary to the public policy of affording injured and disabled individuals the autonomy of choosing those who perform the intimate tasks of bathing, dressing, feeding, and catheterizing. Meier concludes that if Hartford assumescontrol of who takes care of him, he loses the ability to choose the people he fives with and converses with on a daily basis.
The ability of the health services consumer to direct and control the health services he or she needs is recognized in the literature on the subject and sometimes referred to as “consumer-directed personal assistance services.” See, e.g., Sabatino & Litvak, Liability Issues Affecting Consumer-Directed Personal Assistance Services— Report and Recommendations, 4 Elder L. J. 247, 254 (1996). The starting point for consumer-directed models is the independent-living model, as developed by disability advocates in the 1970’s. Originally, the independent-living movement demanded that consumers be responsible for all management functions. Under this model, the disabled person is considered an active recipient of services and recruits, selects, trains, manages, and directs his or her own services provider. The recipient is a “consumer” of services, not a “patient.” The personal assistant is accountable to the consumer, not to a supervising nurse or agency. The worker acts, in effect, as an extension of the disabled person and follows that person’s directions as to how to meet his or her needs. This model differs significantly from both the “medical” model of care and the “informal” model of care in matters of control and formality. Sabatino, 255 (citing Dejong et al., The Independent Living Model of Personal Assistance in National Long-Term-Care Policy, Generations 90 [Winter 1992]). Kansas has not previously considered the employment status of personal care assistants who are paid by third parties for the benefit of a workers compensation claimant.
Other states have addressed the issue with differing resolutions. In Locke v. Longacre, 772 P.2d 685 (Colo. App. 1989), the workers compensation claimant entered into an agreement with Locke to provide substantial home care and limited nursing services for Locke’s mother. The agreement purported to create an independent contractor relationship between the claimant and Locke for the benefit of Locke’s mother.
Under Colorado law, the putative employer has the burden of proving that the claimant is not an employee. To prove an individual hired is an independent contractor the putative employer must show that the individual hired is free from control and direction in the performance of the service and that the individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed. 772 P.2d at 686 (citing Colo. Rev. Stat. § 8-70-103[10][a] [1986 Repl. Vol. 6B]). The Locke court found that because the claimant of unemployment insurance was not engaged in a trade, occupation, profession, or other business independent of, but related to her work relationship with Locke, she was an employee of Locke. 772 P.2d at 687.
In Latimer v. Administrator, 216 Conn. 237, 579 A.2d 497 (1990), the Connecticut Unemployment Compensation Act administrator assessed a stroke victim for unpaid unemployment tax contributions on behalf of personal care assistants who rendered at-home services to the stroke victim. The stroke victim appealed.
The personal care attendants were provided to the stroke victim through a nurses registry. Pursuant to the procedure established by the nurses registry, the assistant was paid by the stroke victim through his attorney. The stroke victim, through his attorney, issued an I.R.S. Form 1096 to each of the assistants. The stroke victim retained the right to discharge any personal care attendant. Although the stroke victim’s attorney did not directly supervise the performance of the personal assistants’ duties, the attendants reported their day-to-day activities to him and he monitored the care given to his client. Neither the stroke victim nor the nurses registry accepted responsibility for social security taxes, personal or professional liability insurance, malpractice liability insurance, workers compensation insurance, or individual life, health, or disability insurance.
In reaching its decision, the Latimer court analyzed the factors relative to ascertaining whether a person is an employee or independent contractor, including the right to control the means and methods of work, the right to discharge, the manner of payment, scheduling work hours, the fact that the services performed were to be personally performed by the particular attendants, and the furnishing of equipment and materials. The court determined that all of these factors weighed in favor of finding that the attendants were the employees of the stroke victim. 216 Conn. at 252.
In Lewis v. Com'r of Jobs and Training, 425 N.W.2d 309 (Minn. App. 1988), a person who received services of health care assistants sought review of the determination that the assistants were employees for unemployment compensation purposes. Lewis argued that because the probate court approved the conservator who hired the assistants, the government should be considered the employing unit. As noted previously, under Minnesota law if the employing unit of homeworkers is a government agency, the agency is deemed to be the employing unit of the homeworkers. The Minnesota court again interpreted the statute to pertain only to agencies that provide funds to pay homeworkers. Since Lewis’ funds were used to pay the homeworkers, the statute was inapplicable. 425 N.W.2d at 310. The court concluded that Lewis, the person who retained the right to control the means and manner of the homeworkers’ performance, the mode of payment, the materials and tools, the control of premises, and the right of discharge, was the employer. 425 N.W.2d at 311.
A case where a personal care assistant was determined to be an independent contractor is Swillings v. Mahendroo, 262 N.J. Super. 170, 620 A.2d 452 (1993). There, the plaintiff, Swillings, was a registered private duty nurse working in the home of the defendants, Yog and Kanta Mahendroo, when she slipped and fell in their residence, sustaining a severe ankle fracture. Swillings had medical insurance that paid her medical expenses. She received no state disability or workers compensation benefits for her period of incapacitation.
After Swillings filed a complaint for personal injuries, the Mahendroos asserted in their answer that Swillings was an employee whose claim was barred by the workers compensation act. Swillings then filed a claim for workers compensation and the workers compensation carrier defended against the claim on the basis that Swillings was not an employee but an independent contractor.
The Swillings court analyzed Swilhngs’ nursing duties and found that she performed her nursing duties independently without any supervision or control on the part of the Mahendroos; Swilhngs was required to exercise discretion and professional expertise in the operation of specific machines designed to treat the patient for a specific illness; she dispensed prescribed medication, operated Mahendroo’s ventilator, and monitored her condition; and decisions with respect to timing and suctioning and operation of the ventilator were not susceptible to monitoring by the Mahendroos. The court determined that Swilhngs, a professional nurse who required no supervision in the performance of her duties, was an independent contractor. 262 N.J. Super. at 175.
Although Meier’s attendants signed contracts purporting to acknowledge their status as independent contractors, language in a contract that characterizes an individual as an independent contractor, rather than an employee, is not controlling. The primary concern in determining whether the individual is an employee or an independent contractor is what is done under the contract and not what it states. See, e.g., Latimer, 216 Conn. at 251. We have previously stated that such provisions in a contract are not effective to keep an employer outside the purview of the act when the established facts bring him within it. In making the determination, “ ‘[w]e look beyond the plain language of the contract to the actual status in which the parties are placed.’ ” 216 Conn. at 252. The relationship of contracting parties depends on all the operative facts; the label which they choose to employ is only one of those facts. Knoble v. National Carriers, Inc., 212 Kan. 331, 337, 510 P.2d 1274 (1973).
The error in the district court’s analysis is that the court examined Meier’s control over the circumstances that require him to have assistants, not Meier’s control over the means and manner the attendants perform their jobs. Applying the relevant factors delineated in Crawford, the Secretary noted that the attendants are trained by Meier as to the services required to be provided by the attendants, Meier hired and supervised the attendants, and Meier established the work hours; the work was performed at Meier’s home, and Meier controlled the order and sequence of work; wages were paid by the hour, and Meier furnished the necessary equipment and material; the attendants did not incur a profit or loss; and Meier retains the right to terminate the attendants. The Secretary correctly concluded that for purposes of the Kansas Employment Security Law, Meier is the employer of the attendants.
The district court also concluded that Meier’s former personal assistant was estopped from asserting a claim for unemployment compensation because she had accepted the benefits of an independent contractor to obtain work and disclaimed that status to be eligible for unemployment compensation.
Equitable estoppel prevents litigants from maintaining inconsistent positions concerning transactions that are litigated. In Bowen v. Westerhaus, 224 Kan. 42, 45-46, 578 P.2d 1102 (1978), we noted:
“The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to anodier who, having die right to do so under all die circumstances, has in good faidi relied diereon. [Citation omitted.]
“This court has furdier said:
‘The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude widi reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction.’ [Citation omitted.]
‘. . . One who asserts an estoppel must show some change in position in reliance on die adversary’s misleading statement . . . .’ [Citation omitted.]
‘. . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, bodi at law and in equity, from asserting rights against anodier person relying on such conduct. A party asserting equitable estoppel must show that anodier party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if die other party were permitted to deny die existence of such facts.’ [Citation omitted.]”
The district court relied on Marley v. M. Bruenger & Co., Inc., 27 Kan. App. 2d 501, 6 P.3d 421 (2000), as authority for applying equitable estoppel.
In Marley, Marley was an over-the-road truck driver who owned his own tractor at the time he entered into a relationship with Bruenger. Marley operated a trucking business. At the time he entered into his relationship with Bruenger, he had been in the trucking business for a number of years and had been involved in a variety of other jobs as well.
The relationship between Marley and Bruenger was defined in a written agreement entered into and signed by both parties. The agreement was labeled “Contractor Transportation Agreement” and was signed by both parties. The agreement provided that the parties intended to create an independent contractor and not an employer-employee relationship. The agreement specifically dealt with the question of workers compensation. The agreement specified that the contractor had the option of obtaining coverage through a workers compensation policy or through the carrier’s truckers occupational accident insurance.
Marley, pursuant to the agreement, applied for truckers occupational accident insurance. The written application contained a certification that he was not an employee of the trucking company. After Marley was injured in a job-related accident, he applied for and received maximum benefits under the policy. Marley would not have been eligible for those benefits if he had not been an independent contractor at the time of the accident. After exhausting his benefits under the independent contractor policy, Marley disclaimed his status as an independent contractor and claimed to be an employee, eligible for workers compensation benefits. The Court of Appeals applied the doctrine of equitable estoppel and prevented Marley from claiming to be an employee after taking advantage of the benefits of an independent contractor. 27 Kan. App. 2d. at 505.
Marley is distinguishable. Here, Meier’s former attendant accepted as a condition of employment being characterized as an independent contractor. The benefits associated with independent contractor status do not rise to the level of benefits realized by Marley. The benefits articulated by the district court were that Meier’s former assistant paid her own income taxes and did not require Meier to pay withholding or social security taxes. It is difficult to conclude that these are “benefits” to the attendant. The result of the independent contractor status relieved. Meier, not his assistant, of certain taxes. Equitable estoppel will not be applied to preclude the Secretary from determining that Meier is an employer subject to Kansas Employment Security Law.
The decision of the district court is reversed. The Secretary’s decision that Meier’s personal attendants are employees for purposes of the Kansas Employment Security Law is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This case resolves whether a 3-or 5-year statute of limitations applies to an alleged breach of implied covenants in an oil and gas lease. The actions of defendant Amoco Production Company (Amoco), the producer lessee, under an implied covenant to market in a government-controlled gas price environment are also at issue. Although other jurisdictions have addressed the statute of limitations issue, Kansas has not. Also, we may be the first appellate court to be presented with the type of lessor royalty owner claims asserted here, i.e., breach of the implied covenant to market arising in a factual setting under the Natural Gas Policy Act (NGPA), where the Federal Energy Regulatory Commission’s (FERC) Order 451 has been invoked by the lessee.
The class action representative plaintiff, George Smith, and others (either the Smith Class or lessors) are lessors under a minority of natural gas leases held by defendant Amoco in the Kansas Hugoton and Panoma Council Grove fields (Hugoton area). This equitable action for an accounting is based on alleged breaches of the implied covenant to market and the implied duty of good faith and fair dealing, in each lease independently, between Amoco and each lessor.
The lessors claim that from November 1,1990, through December 31,1992, Amoco should either have sold all the lessors’ natural gas for maximum lawful prices or paid them compensatory royalties. According to the Smith Class, “[a]n equitable accounting was sought to require that Amoco share equitably the economic benefits of the strategic plan it successfully employed at the expense of this class of royalty owners.” The difference between maximum lawful prices and the market prices for which the gas was sold would be the basis for computing the royalty owed. The leases called for royalties to be paid on either market value of the gas or proceeds of sale.
In applying K.S.A. 60-512, a 3-year statute of limitations, the district court limited its time frame for viewing Amoco’s duty to act as a prudent operator. In holding that Amoco was a prudent operator, the district court only considered Amoco’s actions from August 11, 1990, forward. August 11, 1990, was 3 years from the date this action was filed. The district court held that the lessors failed to prove that Amoco, within the 3-year period, either could have sold the gas for maximum lawful prices or that Amoco could have obtained a greater-than-market price for the gas. The lessors appeal.
■The district court also found that Amoco had an implied duty to obtain the best possible price for gas produced from the lessors’ leases and that it had done so. Amoco cross-appeals the best possible price finding.
The issues for review on the lessors’ appeal are whether the district court erred in finding that: (1) K.S.A. 60-512, a 3-year statute of limitations, applies and (2) Amoco acted as a prudent operator.
The issue on the cross-appeal is whether the district court erred in concluding that there was an implied duty for Amoco to obtain the best possible price for gas.
We have jurisdiction under our order of transfer. K.S.A. 20-3018(c).
We hold the implied covenants at issue here are implied in fact; thus K.S.A. 60-511, a 5-year limitation statute, applies. Our ruling on the statute of limitations issue expands the window for viewing Amoco’s conduct, and, thus, the prudent operator issue will be decided by the finder of fact on remand. The standards for measuring whether Amoco has met its prudent operator duty to the lessors will include the effect of a government-controlled price environment, as more fully discussed in the opinion.
Our statute of limitations ruling also affects the cross-appeal. The district court held that Amoco had marketed at the best possible price. (We have used the phrase “best prices obtainable at the place where the gas was produced.” Maddox v. Gulf Oil Corporation, 222 Kan. 733, 735, 567 P.2d 1326 [1977], cert. denied 434 U.S. 1065 [1978].) On remand the trier of fact, applying K.S.A. 60-511, the 5-year limitations statute, and the rationale of this opinion, will decide if Amoco’s activities complied with the standards of conduct of a prudent operator. The prudent operator standard controls the pricing issue raised by the cross-appeal, as Amoco’s implied covenant to market is contained within the duty to act at all times as a reasonably prudent operator.
We reverse and remand.
FACTS
This case was tried over a 7-day period by experienced counsel before an able judge. The record consists of 59 volumes, over 3,700 pages, plus numerous depositions, and over 200 exhibits. The parties before trial entered into 83 separate written stipulated facts. All of the stipulated facts were incorporated into the findings of the district court. In order to convey the historical background and complexity of the case, we have set out the district court’s findings in full. The Smith Class does not challenge any of the findings.
“The following facts are those that the Court considers material to its decision herein, which include the 83 stipulated facts submitted by the parties.
“The Plaintiff in this proceeding is George Smith, both individually and as class representative for all oil and gas royalty owners whose royalty payments for natural gas were reduced on a per MMBtu basis due to renegotiation, amendment to or termination of the gas purchase contracts between Amoco Production Company and Williams Natural Gas Company, Inc., after the effective date of Order 451 issued by the Federal Energy Regulatory Commission (FERC).
“The Defendant, Amoco Production Company, is the lessee of an oil and gas lease in which Smith owns a royalty interest covering a tract of land in Finney County, Kansas. At all times relevant, Amoco produced natural gas from the Smith lease.
“The Hugoton natural gas field covers a large portion of Southwest Kansas and extends into Oklahoma and Texas. The Panoma natural gas field underlies a portion of the Hugoton natural gas field. There are in excess of 5,800 wells in the Kansas portion of this field, which produce approximately 80 percent of all the gas produced in the State of Kansas.
“The predecessor to Amoco and the predecessor to Williams entered into a contract dated June 23rd, 1950, which was amended substantially in 1966,1971, and 1974. Under the terms of this contract Amoco sold all gas from all of its leases covering approximately 600,000 acres in the Hugoton and Panoma fields to Williams for so long as the leases continued to produce.
“Williams owns a gas line which extends from Grant County, Kansas, to Johnson County, Kansas.
“Also on the same date, the predecessors to Amoco and Williams entered into a gas processing agreement, which allows Amoco to process all gas produced in areas A and B covered by the 1950 contract through a gas processing plant located in Grant County, Kansas, where Amoco removes liquids from tire gas stream prior to committing the gas stream to Williams pipeline for resale by Williams. A third area known as area C of tire Amoco field was not processed by Amoco as a result of the 1950 contract.
“One of the additional terms 'of the 1950 contract was that tire predecessor to Amoco sold to the predecessor to Williams the gathering system that it had constructed for area A, and Williams then constructed a gathering system to connect all of Amoco’s wells located on the leases in area B of the Hugoton field to Amoco’s gas processing plant. A separate gathering system was built by Williams to connect Amoco’s leases in area G to another gas processing company.
“The 1974 amendment to the 1950 contract required Williams to purchase gas from Amoco at the highest price authorized by law.
“In 1938, the United States Congress enacted the Natural Gas Act of 1938, which authorized the Federal Power Commission to regulate pipeline rates for transportation and resale of natural gas. At the time of the 1950 contract and until the late 1980’s the primary buyers of natural gas were the pipeline companies such as Williams.
“Between 1970 and 1976, various rulings of the FPC established the maximum lawful price for various classes of natural gas being produced in the Hugoton/ Panoma fields.
“After an extremely cold winter of 1976 to 1977, a natural gas shortage began to develop.
“In response, die United States Congress on November 9, 1978, enacted die Natural Gas Policy Act (NGPA) as a part of a national energy policy. The NGPA defined various categories of natural gas and established maximum lawful prices for those classes.
“The NGPA established a higher price for stripper gas and new gas in order to encourage die production of more natural gas in the United States.
“The NGPA established the following classes of natural gas: section 104 old flowing; section 104 biennium; section 104 post-1974; section 103 new onshore; section 108 stripper gas well production.
“The NGPA established die maximum lawful prices for natural gas. The section 108 gas was set at the highest price, the section 103 new onshore was slightly less, the section 104 post-1974 gas slightly lower, the section 104 biennium was lower, and the section 104 old flowing was the lowest in price.
“By early 1984, the NGPA, because of its pricing structure for new gas and stripper gas and because of odier parts of die Act, which discouraged several industries from relying on natural gas, had created an abundance of natural gas.
“Because of die increased prices resulting from the passage of NGPA and because of die other natural gas saving aspects of diat law, the total sales of Williams was reduced by approximately one-half between 1979 and 1986.
“In late 1985, the Federal Energy Regulatory Commission, predecessor to die FPC, issued Order 436, which gave open access to pipelines and had the effect of changing a pipeline from a buyer of gas and reseller of the same to a transporter of gas for either a consumer or a producer.
“The effect of this Order 436 on Williams was to reduce by two-thirds Williams’ total purchases of gas between 1985 and 1992 because Williams’ customers would buy from producers directly.
“In late 1986, Williams attempted to retain customers to purchase its gas at the same time it was dealing with customers and producers to transport gas through its pipelines. Williams attempted to retain its customers by establishing a certain priced gas based on die weighted average cost of gas to its customers, and was able to do this by its purchases of gas in the spot market and purchases of section 104 low cost gas from Amoco, along widi rateable purchases of die higher priced gas from Amoco.
“Although Williams controlled the right to purchase all of Amoco’s gas under die 1950 contract, Williams also purchased gas from many odier suppliers under approximately 1,300 gas purchase contracts from 500 producers in six states. Williams also purchased gas from other interstate pipelines, and it purchased gas not only in Kansas, but also Oklahoma, Texas, Colorado, Wyoming, and Missouri.
“Between late 1987 and early 1988, almost all of the major suppliers of gas to Williams invoked Order 451, and those suppliers diereby effectively terminated whatever purchase contracts they had with Williams.
“FERC Order 451 became effective January 23, 1987. A producer invoked Order 451 by instituting good-faith negotiations and requesting a new price nomination from die purchaser. The purchaser could nominate the maximum lawful price permitted under Order 451, which was the price established for section 104 post-1974 gas, in which case the producer was obligatéd to continue to sell the gas at that price. If die purchaser nominated a lesser price than the maximum lawful price for section 104 post-1974 gas, the producer had the option of accepting die lower price or rejecting it, and if rejected, die contract was abandoned. If the purchaser refused to set a new price, the contract was abandoned.
“After March of 1988, Williams’ only major remaining Hugoton gas purchase contract was the 1950 gas purchase contract with Amoco, under which Williams could purchase up to 300 million cubic feet per day of gas. That 1950 gas purchase contract then represented approximately 95 percent of all of the gas that Williams had under contract in die Hugoton-Panoma gas fields after March of 1988.
“FERC Order 451 had the effect of allowing some producers to obtain the release of gas otherwise dedicated to interstate sales widiout die voluntary agreement of the purchaser.
“But Order 451 did not have diis effect on the Amoco and Williams 1950 contract, because under the terms of diat contract Williams was not required to purchase any certain quantity of gas. Williams only had the obligation to take gas from die Amoco leases ratably and ratably as it took gas from other producers in die Hugoton/Panoma fields.
“In the summer of 1986, Amoco and Williams entered into informal negotiations to try to resolve several problems and conflicts diat existed between them. Amoco wanted to increase the price of the section 104 old gas and obtain the release of all of the gas dedicated to the 1950 contract that Williams did not need so that Amoco could sell diis gas to other customers. Amoco wanted to own or operate the gathering system so it could make improvements to die system owned by Williams, and thereby sell more gas and to obtain reliable transportation at reasonable rates and to obtain additional processing rights to the gas it produced, that being in area C of the Hugoton field, and to drill and connect infill wells.
“There were additional disputes between Amoco and Williams involving claims under gas purchase contracts in the Moxa and Wamsutter fields in Wyoming and other ongoing litigation and direats of litigation.
“These informal negotiations, starting in the Summer of 1986, continued to June 8 of 1989. Amoco did not invoke the provisions of FERC Order 451 during this period of time because it was afraid that if it did so Williams would nominate the maximum lawful price and shut in the gas field, because pursuant to the 1950 gas purchase contract, Williams was only required to take ratably from die Amoco wells with what it took from other wells in die Hugoton/Panoma gas field.
“These negotiations extending from the Summer of 1986 to 1989 never achieved the goals of either Amoco or Williams.
“On June 8,1989, Amoco formally exercised its rights under FERC Order 451 as to section 104 old flowing gas produced in the Hugoton field. Within 30 days, Williams invoked Order 451 good-faith negotiations as to section 103 and 108 gas. Williams nominated die maximum lawful price for section 104 flowing gas. Following that, Amoco nominated the maximum lawful price for section 103 and 108 gas.
“The action taken by Amoco had the effect of raising the section 104 old flowing gas from .579 to $2,864, and it increased section 104 recompletion gas from $1,040 to $2,864 and section 104 biennium gas from $1,851 to $2,864.
“The invocation of FERC Order 451 by Amoco did not decrease the price of either section 103 or 108 gas. At the time Williams invoked good-faith negotiation on die section 103 and section 108 gas, the maximum lawful price of section 103 gas was at $3,460 and section 108 gas was at $5,762.
“At diis time, in August of 1989, the average market value of gas at the well was $1.20 MMBtu. Between 1989 and 1992, the published actual prices of wellhead gas per MMBtu, die free market price, ranged from $1.29 to $1.42.
“Prior to August of 1989, Williams was able to purchase the section 103 and section 108 gas at its maximum lawful price, which was far above the spot market price of gas, because Williams was able to purchase section 104 gas at approximately two-diirds the market price and blend the cheap section 104 gas it was purchasing with die more expensive section 103 and section 108 gas, thereby being able to hold its total cost of gas down to where it could satisfy its customers’ pricing, and thereby sell gas taken from Amoco under die 1950 contract.
“After Amoco invoiced Order 451 as to die section 104 gas and raised up its price, and Williams responded by invoking Order 451 as to the 103 and 108 gas, diis was no longer possible.
“Williams shut in Amoco’s Hugoton/Panoma gas field, talcing only minimal amounts of gas each month from each lease.
“Williams could meet its needs on the spot market and did not have to purchase any substantial quantity of gas under the 1950 contract with Amoco.
“Beginning in 1989,1990, and 1991, through negotiations, Amoco and Williams agreed for the release of increasingly larger amounts of gas from the 1950 contract under temporary agreements.
“The released gas was then sold by Amoco to any consumer it could find at spot market prices from November, 1990, through the end of December, 1992.
“Williams would not release all of the gas that Amoco produced from the terms of 1950 contract because Williams needed the Amoco gas to meet its peak delivery requirements during the Winters of 1990-1991 and 1991-1992.
“After Amoco invoked Order 451 and instituted the good-faith negotiations, the average weighted price of gas to Williams under tire 1950 contract increased from $1.29 to $3.24 primarily because of tire huge increase in price of the section 104 gas being increased from .58 to $2.86. Williams had access to other gas supplies besides those coming from Amoco where they were able to purchase cheaper gas on the spot market far below the $3.24 price they would have had to have paid Amoco. This was important to Williams in order to maintain its $2.10 weighted average cost of gas to keep its customers.
“During 1989, 1990, and 1991, Williams continued to take gas at peak cold times and one day per month from each lease to prevent cancellation of the lease. For this gas Williams paid prices established by Order 451, and, therefore, Williams continued to pay tire maximum lawful price for 103 and 108 gas purchased during this period of time.
“From August, 1989, through the end of 1992, Williams’ purchases of gas under the 1950 contract continuously declined each year.
“Commencing in November of 1990, Amoco’s production of gas increased dramatically, and they were able to sell all of the gas they produced, excepting only that taken by Williams pursuant to tire 1950 contract, at market price under these short-term release agreements.
“In August, 1991, a long-term release agreement, which extended through December of 1992, was entered into between Amoco and Williams. This release agreement did not contain the recall agreements that had been in the prior short-term release agreements.
“Amoco knew that tire gas of the Smith Class that was dedicated to tire 1950 contract was eligible for section 103 and 108 NGPA prices, which were much higher tiran tire average spot market prices that Amoco could receive for released gas between August, 1990, and December, 1992.
“Prior to obtaining the release of the section 103 and section 108 gas and all other classes of gas from the 1950 contract, Amoco was only selling very small volumes at the regulated price because Williams was only taking a very small amount of gas from tire Amoco wells in order to hold its position under the 1950 contract.
“There was no market in the free market for any gas priced at the maximum lawful price of section 103 and section 108 gas between August, 1990, and December 31, 1992. It was simply too high for anyone to pay when there was an abundance of cheaper gas in the market place.
“The United States Government, through die Wellhead Decontrol Act, which took all price regulations off of natural gas as of December 31, 1992, as well as FERC Orders 436 and 451, intended to create a free market to determine die price of natural gas.
“The invocation of Order 451 by Amoco in June of 1989 and die negotiated releases of gas from the 1950 contract in die years 1990 tiirough the end of 1992 allowed Amoco to use the released gas sales to develop a customer base because the future was certain that Williams would not be the only customer of Amoco in die coming years.”
DISCUSSION
Proceedings Below
This action, filed in Finney County on August 11, 1993, was consolidated with Youngren v. Amoco, Case No. 89 CV 22, and transferred to Stevens County. In Youngren, royalty owners with leases in the Hugoton area whose old gas sold for the low maximum lawful prices sued Amoco for failing to invoke Order 451 sooner (to increase the price of gas produced by their leases). Youngren was settled.
This case went to trial. The sales in question were those released from the 1950 contract occurring from November 1990 through December 1992. Amoco invoked Order 451 in 1989. The district court, on June 2, 1998, in denying both Amoco’s and the lessors’ motions for summary judgment focused on unresolved fact questions saying:
“Whether or not [Amoco] was acting as a prudent operator when it entered into agreements for the sale of the released gas in 1990, ‘91 and ‘92 at the prevailing market prices begs the question as to whether or not it was acting as a prudent operator when it chose to exercise its rights to invoke Order 451. That is the key question of fact that must be resolved by the trier of fact in this proceeding.” (Emphasis added.) (Denying Amoco’s motion.)
“At die heart of the Plaintiffs’ case this Court believes that there is a question of fact that is unresolved as to whether or not the Defendant was using the negotiating provisions of the FERC Order 451 to obtain a financial benefit for the Defendant, to the detriment of these Plaintiffs. It is uncontroverted that the Defendant herein entered into the good-faith negotiations with William Natural Gas and [was] aware of the impact of those negotiations upon the Smith Class new’ gas prices.” (Emphasis added.) (Denying the lessors’ motion.)
Amoco later filed a second motion for summary judgment based on the statute of limitations. The district court, in June 1999, relying on Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, 894 P.2d 881 (1995), granted the motion in part, applying K.S.A. 60-512, a 3-year statute of limitation, to the lessors’ claims. Zenda Grain is not an oil and gas case. The district court ruled that the implied covenants in the lessors’ leases were covenants implied in law, not in fact, and, thus, a 3-year statute of limitation applied. The district court understandably had difficulty in resolving this Kansas first-impression issue. In the journal entry for partial summary judgment the district judge said:
“There seems to this Court to be an inherent inconsistency created when an arbitrary time limit is imposed upon an artificial cause of action which was created to promote justice.
“Nevertheless, trial courts must be bound by appellate court precedence or chaos results. This Court has spent too much time trying to find some precedent other than Zenda Grain and is bothered by the result of an arbitrary time limit imposed, on a cause of action created to promote fairness andjustice, but is bound by Zenda Grain, nevertheless.
“Relying upon the authority of Zenda Grain v. Farmland Industries, this Court finds that die implied covenants to deal fairly, to market gas, and to obtain the best price possible can only be imposed by operation of law and are clearly implied • obligations within the lease agreement, which have a three-year statute of limitations.
“. . . Plaintiffs are entitled to pursue claims against Amoco for all breaches and damages occurring on or after August 11, 1990.” (Emphasis added.)
The District Court’s Ruling at Trial
During the bench trial the district court was presented with deposition testimony, documentary evidence, stipulations, and live testimony from witnesses, including expert testimony for both sides. It concluded that Amoco had an implied duty to obtain the best possible price for gas produced from its leases and that Amoco had fulfilled that duty. Applying K.S.A. 60-512(1), the 3-year limitation statute, the district court found “that in all regards to the Smith Class royalty owners Amoco did act as a prudent operator because between August 11, 1990, and December 31,1992, Amoco did the best thing it could possibly do for the Smith Class royalty owners.” (Emphasis added.) The district court also found that the lessors failed to prove that Amoco: (1) could have obtained a greater price for the sales of released gas; (2) could have sold the lessors’ gas for the NGPA maximum lawful price; or (3) breached an implied covenant of fair dealing.
The Statute of Limitations
The district court said that if the 5-year statute of hmitations applied, the damages resulting from breach of lease agreements would be hmited to the 5 years preceding the date the action was filed, August 11, 1993. If the 3-year statute of hmitations apphed, “the resulting damages occurring from and after August 11, 1990, the preceding three years, would be at issue.” The district court concluded that the lessors were entitled to pursue claims against Amoco for “all breaches and damages occurring on or after August 11, 1990.” Lessors sought no accounting for sales after December 31, 1992, because gas prices were deregulated after that time.
The lessors contend that the district court erred by keying on the date, August 11, 1990, (3 years from the filing of the claim) to define the substantive nature of the case, rather than as a procedural rule to decide if the action was filed in a timely manner after it had accrued. Because of our holding that K.S.A. 60-511, the 5-year statute, apphes, resolution of the parties’ debate on whether the district court confused a statute of hmitations with a statute of repose is neither pivotal nor required.
The lessors’ equitable action arises out of an alleged breach of imphed covenants and duties. Amoco’s intent, conduct, and motives that occurred before, during, and after August 11, 1990, to December 31, 1992, are relevant in determining whether a breach of imphed covenants occurred.
Excerpts from the journal entry of decision mirror the significance placed by the district court on the date of August 11, 1990.
“To this Court what makes Amoco a prudent operator is confined to the issues in this case and the acts that Amoco did between August 11,1990, and December 30, 1992.
“[Bjetween August 11,1990, and December 31,1992, Amoco did the best thing it could possibly do for the Smith Class royalty owners.
. . Plaintiffs have failed to prove that any action done by Amoco between August, 1990, and December, 1992, breached the duty to deal fairly and honestly with die Smith Class.” (Emphasis added.)
The lessors, having filed their action in time, were entitled to prove their claim by advancing admissible evidence of the Amoco-lessor relationship before or after August 11, 1990. In fact, the district court focused on Amoco’s negotiating the provisions of FERC Order 451 and invoking 451 in 1989 as the unresolved questions of fact requiring denial of both parties’ 1998 summary judgment motions.
We next take up the 3-year/5-year statute of limitation controversy. The lessors contend that the district court’s finding conflicts with the well-settled rule that an action upon implied covenants in a written oil and gas lease is an action governed by a 5-year statute of fimitations. See K.S.A. 60-511(1). According to the lessors, the lease covenants here are implied in fact, not in law, and are, thus, an integral part of the written lease. We agree.
This issue involves a question of law, over which we have unlimited review. Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991).
K.S.A. 60-511(1) says:
“The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.”
K.S.A. 60-512(1) says:
“The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing.”
We identify the unique character of oil and gas jurisprudence as the cardinal thread in our analysis of the statute of fimitations question. Implied covenants in oil and gas leases and government regulation of the gas industry have historically been litigated, discussed in texts, and debated by scholars. One result has been the development of a body of law that recognizes implied covenants in an oil and gas lease as either implied in fact or implied in law. In reality there appears to be no clearly established or uniformly applied basis in the law for distinguishing between the two concepts. See 5 Kuntz, A Treatise on the Law of Oil & Gas § 54.3(b) (1978).
The district court relied on Zenda Grain, 20 Kan. App. 2d 728, advanced below by Amoco, in reasoning that the 3-year statute of limitations applies here. We disagree. The implied warranty there was for management services to be performed in a workman-like manner in managing a farmers cooperative. For a discussion of implied covenants in oil and gas leases see Martin, Implied Covenants in Oil and Gas Leases -Past, Present & Future, 33 Washburn L. J. 639 (1994); Cohen, Implied Covenants in Kansas Oil and Gas Leases, 9 Kan. L. Rev. 7 (1960).
A contract implied in fact is one “inferred from the facts and circumstances of the case” but which is “not formally or explicitly stated in words.” Atchison County Farmers Union Co-op Ass’n v. Turnbull, 241 Kan. 357, 363, 736 P.2d 917 (1987). It is the product of agreement, although it is not expressed in words. In re Marriage of Wageman, 25 Kan. App. 2d 682, 687, 968 P.2d 1114 (1998). See Degnan v. Young Bros. Cattle Co., 152 Kan. 250, 254-55, 103 P.2d 918 (1940). A contract implied in law does not rest on actual agreement. It is a legal fiction created by the courts to ensure justice or to prevent unjust enrichment. See Mai v. Youtsey, 231 Kan. 419, 422, 646 P.2d 475 (1982).
Commentator Roger C. Cohen agrees with the lessors here that Mills v. Hartz, 77 Kan. 218, 94 Pac. 142 (1908), supports the proposition that implied covenants in oil and gas leases are implied in fact. 9 Kan. L. Rev. at 7. Mills involved an action to cancel an oil, gas, and coal lease for failure to explore and properly operate. We held that a lessee has a duty to explore and develop the lease. We noted that in Maxwell v. Todd, 112 N.C. 677, 16 S.E. 926 (1893), the lease contained no stipulation of forfeiture resulting from the failure to explore or work the mines. The Maxwell court held that “ The law will construe the contract as if such a stipulation had been expressly written therein, and will adjudge such lease to be forfeited if, within a reasonable time, the lessee fails to cany out the purpose of the lease/ ” Mills, 77 Kan. at 222. We found that Mills’ protracted delay and the failure to act on the things contem plated by the lease was the equivalent to a surrender and the lessor had the right to treat the contract as abandoned. 77 Kan. at 223.
The lessors also rely on Gillet v. Investment Co., 111 Kan. 755, 756-57, 207 Pac. 843 (1922). In Gillet, an oil and gas case, we allowed plaintiffs with express covenants and plaintiffs with implied covenants to be joined in the same action.
The lessors also direct us to oil and gas lease cases involving statute of limitation issues from other jurisdictions. In Texas Pacific Coal & Oil Co. v. Stuard, 7 S.W.2d 878 (Tex. Civ. App. 1928), the lessee argued that the implied covenant to develop the premises required the application of a 2-year statute of hmitations because it was not in writing. The Texas Pacific court noted that, upon accepting the lease, Texas law imposed a duty to develop the premises diligently if the oil and gas could be developed profitably to Stuard. The obligation "was in the minds of the parties and became a part of the written contract.” 7 S.W.2d at 881. Texas Pacific concluded that the implication to develop was part of the contract and, therefore, was governed by the 4-year statute of hmitations, rather than the 2-year statute of hmitations. 7 S.W.2d at 882. See also Danciger Oil & Ref. Co. v. Powell, 137 Tex. 484, 490-92, 154 S.W.2d 632 (1941) (noting that covenants will be imphed in fact when necessary to give effect to the actual intention of the parties,, as reflected by the contract, and also concluding that there was no imphed covenant to develop the property for oil and gas mining purposes).
Indian Terr. Illuminating Oil Co. v. Rosamond, 190 Okla. 46, 50-51, 120 P.2d 349 (1941), held that an imphed covenant of an oil and gas lease was subject to a written contract 5-year statute of hmitations rather than the 3-year statute for actions upon contracts not in writing. The court noted: “ ‘A covenant arising by necessary implication is as much a part of the contract — is as effectually one of its terms — as if it had been plainly expressed.’ ” 190 Okla. at 50. Indian Territory concluded that the imphed covenant to protect against drainage was a part of the written lease as if it had been expressly hsted in the lease. 190 Okla. at 50. See also Sundheim v. Reef Oil Corporation, 247 Mont. 244, 806 P.2d 503 (1991) (the parties agreed that the 8-year statute of hmitations relating to written contracts applied to the covenants arising out of an oil and gas lease); U.V. Industries, Inc. v. Danielson, 184 Mont. 203, 228, 602 P.2d 571 (1979) (finding that implied covenant to protect from drainage by drilling an offset well was governed by the 8-year statute of limitations relating to written contracts). Amoco does not mention Texas Pacific, Danciger Oil, Indian Terr., Sundheim, or Danielson in its arguments on appeal.
In addition to Zenda Grain, Amoco relies on other non-oil and gas cases to support its implied in law argument. See Turner and Boisseau v. Nationwide Mut. Ins. Co., 944 F. Supp. 842, 846 (D. Kan. 1996) (because written contract made no reference to fees and expenses, “any agreement ... to charge reasonable and appropriate fees would have had to have been either an implied or oral agreement, and thus subject to the three-year statute of limitations”); Miller v. William A. Smith Constructing Co., 226 Kan. 172, Syl. ¶ 1, 603 P.2d 602 (1979) (for written agreement to fall within 5-year statute of limitations, it “must contain all its material terms in writing”); Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 332-34, 582 P.2d 1111 (1978) (3-year statute of limitations applied to claim based on implied warranty to complete a job in workmanlike manner, notwithstanding existence of written contract); Chilson v. Capital Bank of Miami, 10 Kan. App. 2d 111, 113-15, 692 P.2d 406 (1984), aff'd 237 Kan. 442, 701 P.2d 903 (1985) (stamp on back of check did not constitute written guarantee; guarantee implied by UCC and 3-year statute controls); Ware v. Christenberry, 7 Kan. App. 2d 1, 4, 637 P.2d 452 (1981) (action sounding in contract for breach of implied warranty governed by 3-year statute of limitations). These cases are not persuasive here.
Amoco also advances Waechter v. Amoco Production Co., 217 Kan. 489, 537 P.2d 228 (1975), aff'd on reh. 219 Kan. 41, 546 P.2d 1320 (1976), and Lightcap v. Mobile Oil Corporation, 221 Kan. 448, 463, 562 P.2d 1 (1977), cert. denied 434 U.S. 876 (1977), both oil and gas cases, to support its contention that the implied covenants in the leases here are implied in law, not in fact, and, thus, subject to K.S.A. 60-512(1), the 3-year statute.
In Waechter we held that in spite of the existence of a written oil and gas lease, claims to recover mistaken overpayment of royalties were based on a theory of implied contract. Thus, the claims were subject to the 3-year statute of hmitations. In determining which statute of hmitations apphed, we noted:
“ ‘Although a written contract was in existence between the lessor and the lessee and another between the lessee and the distributor of the gas, the amounts here claimed are not due under either contract. The sole basis for recovery must be found in a contract implied in law requiring a person who has been unjustly enriched at the expense of another to make restitution.’ [Citation omitted.]” (Emphasis added.) 217 Kan. at 516.
In Lightcap, we again apphed the 3-year statute of hmitations to a claim regarding the overpayment of royalties under a theory of unjust enrichment. 221 Kan. at 463.
As Amoco points out, ah commentators in oil and gas law do not agree on the question of whether imphed covenants in oil and gas leases are integral parts of the written contract and, thus, imphed in fact.
We next take up a review of text authorities.
“The question is sometimes discussed, though seldom litigated, whether covenants are implied ‘in fact’ or ‘in law.’ Eminent authorities have disagreed: Mr. A.W. Walker, Jr., believes that covenants are implied in fact; Professor Maurice Merrill believes very firmly they are implied in law.” 5 Williams & Meqyers, Oil & Gas Law § 803, p. 17 (2000).
Williams and Meyers conclude that there is a large element of truth on both sides of the controversy. They opine:
“A covenant is implied in fact when its existence is derived from the written agreement and the circumstances surrounding its execution. A covenant is implied in law when it is added to the contract by a court to promote fairness, justice and equity.” 5 Williams & Meyers § 803, p. 18.
They ask:
“Does it make any difference whether covenants are implied in fact or in law? Judging from the reported cases, the answer seems to be, not often and not much. The decisions disclose three consequences that may depend upon the distinction.
“First, the statute of hmitations applicable to an action for breach of implied covenant may be determined by the classification of the covenant as implied in fact or implied in law. Two cases in point hold tire covenant to be implied in fact and give the lessee the benefit of the longer period of limitation applicable to written contracts [citing Indian Territory (Oklahoma) and Stuard (Texas)]. Both reject the contention that since covenants are implied by courts to accomplish justice and are not part of the contract made by the parties the shorter limitation period applicable to contracts not in writing should govern implied covenants.
“Second, it is said that the continued liability of the original lessee, after his assignment of the lease, depends upon whether the covenants in the lease are implied in fact or in law. If implied in fact, the lessee remains liable; if implied in law, he does not, since liability is predicated on a relationship that has terminated. Here, again, the cases seem to adopt the position that the covenant is implied in fact, and hence the lessee remains liable for performance of the covenant [citing Gillet, 111 Kan. 755 (1922)].
“In summary, wherever it has mattered, the courts have declared covenants to be implied in fact and have invoked the consequences that follow from such classification.” (Emphasis added.) 5 Williams & Meyers § 803, pp. 18-19.
Williams & Meyers critique the issue this way:
“One may wonder why all the sound and fury about the question of implication ‘in law’ or ‘in fact’ when the consequences seem so minor and the authorities so uniformly in favor of implication in fact. We suspect that the disagreement is moré than academic shadowboxing.” 5 Williams & Meyers § 803, p. 19.
Another text writer, Eugene Kuntz, says:
“Although there is no clearly recognized and uniformly applied basis for making a classification of things implied in law and things implied in fact in other areas of the law, the term ‘implied in law’ is a better description of the nature of covenants implied in oil and gas leases.
“In the few cases decided on the subject in which a classification of implied covenants was material, most of the deliberate expressions on the subject are to the effect that the implied covenants are implied in fact. The cases in which such classification was material involved the statute of limitations, the parol evidence rule, venue, and the liability of a lessee on the covenants after an assignment of tire lease.
“In those instances in which the court has been called upon to determine which statute of limitations should be applied to actions on the implied covenants, it has been held that the statute governing the bringing of actions on written contracts is applicable.” (Emphasis added.) 5 Kuntz, A Treatise on the Law of Oil and Gas § 54.3(b), pp. 9-10 (1978).
Kuntz also comments on Gillet, 111 Kan. 755:
“It has been held that the original lessee does remain liable on the covenants of full development and protection against drainage after assigning the lease. In the case so holding, the court disposed of the question by saying that the original lessee remained liable on the covenants, ‘because he made them.’ Merrill would have held otherwise.” 5 Kuntz § 54.3(b), p. 12.
Professor Merrill is the advocate for the implied in law approach. See Merrill, The Law Relating to Covenants Implied in Oil and Gas Leases § 220 (2d ed. 1940).
Kuntz concludes:
“Basically, the result of the decisions is that implied covenants are to be treated as a part of the written instrument.” 5 Kuntz § 54.3(b), p. 13.
Professor David E. Pierce believes that in Kansas, implied lease covenants are “implied in fact,” explaining that “implied lease covenants, being implied in fact, are limited by the express terms of the lease agreement and the intent of the parties as reflected by the nature and purpose of the leasing transaction.” 1 Pierce, Kansas Oil and Gas Handbook § 10.01, pp. 10-4 to 10-5 (1989).
According to Professor Richard W. Hemingway:
“There is much to be said for the implied-in-law approach championed by Professor Merrill. Although courts state that they are effectuating the intent of the parties, seldom is an actual inquiry to intent reported.. . .
“Controversy also exists as to whether the covenants are implied in law or in fact. If the former, they do not constitute part of the contract itself. If the latter, they are considered as being part of the contract and are subject to the same laws affecting limitations, venue, etc., as the written lease. It appears that the majority view is that implied covenants are implied in fact and not in law.” (Emphasis added.) Hemingway, The Law of Oil & Gas § 8.1, p. 543 (3d ed. 1991).
Hemingway leads off his recitation of authorities supporting the implied in fact view with a Kansas case, Gillet. Hemingway § 8.1, p. 543.
The Indian Territory court observed in 1941 that it had found no support for Professor Merrill’s implied in law doctrine in the adjudicated cases. 190 Okla. at 50. Sixty years later, based on the briefing here, we share the same observation. We choose to join Oklahoma, Texas, and Montana in holding that the covenants are implied in fact. Our holding follows the early development of oil and gas law in Kansas. See Brewster v. Lanyon Zinc Co., 140 F. 801 (8th Cir. 1905) (involving a Kansas oil and gas case removed to federal court from the district court of Allen County); Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47 (1910). For a discussion of Brewster, see Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 726-28, 864 P.2d 204 (1993).
K.S.A. 60-511 will control on remand.
The Cross-Appeal ^
The district court found that Amoco had an implied duty to obtain the best possible price for gas produced from the Smith Class leases. Amoco cross-appeals arguing that, under the express provisions of the leases, it merely had a duty to pay royalties based upon either the market value of the gas or on the proceeds of the sale of the gas. In effect, Amoco argues that the royalty clauses of the leases determine the level of price it has the duty to obtain. According to Amoco, the district court has imposed “a new ill-defined standard requiring perfection from producers in a gas market that fluctuates greatly.”
The members of the Smith Class are lessors in a total of 1,439 leases. Of those leases 1,236 are “Waechter” leases (the type considered in Waechter, 217 Kan. 489); 128 of the leases are “proceeds” leases; 50 of the leases are “market value” leases; and the remaining 25 leases are other types of leases.
Waechter leases provide that the “lessee shall pay lessor monthly as royalty on gas marketed from each well one-eighth of the proceeds if sold at the well, or, if marketed off the leased premises, then one-eighth of the market value at the well.” Waechter, 217 Kan. at 489, Syl. ¶ 2. The language of the proceeds leases is not always identical, but the operative language relating to payment of royalties is that the lessee shall pay lessor a share of the actual monies received from the sale of the gas. Under market value leases, royalties are to be computed upon the price that would be paid by a willing buyer to a willing seller in a free market, based upon the arbitrated price. See Matzen v. Cities Service Oil Co., 233 Kan. 846, 851, 667 P.2d 337 (1983).
The district court’s conclusion that Amoco had a duty to obtain the best possible price did not affect the outcome below because of the finding that Amoco did, in fact, obtain the best possible price. However, Amoco challenges the finding as “contrary to longstanding precedent” and suggests it “would impose an unrealistic burden on gas producers.”
Amoco relies on Waechter, 217 Kan. 489, Syl. ¶ 2, and Lightcap, 221 Kan. 448, 457-58. The Smith Class counters by looking to Justice Fromme’s observation in his Lightcap concurring and dissenting opinion that the lessee fulfilled its duties “in obtaining the best price available for the gas produced.” 221 Kan. at 488. For a discussion of Waechter and Lightcap, see Larson, Survey of Kansas Law: Oil & Gas, 27 Kan. L. Rev. 277 (1979).
The Smith Class observes that Waechter noted that the record revealed that Amoco had made sustained efforts to secure a higher price. There was “nothing to suggest it did not use the utmost diligence to obtain the best price possible.” 217 Kan. at 511. Justice Schroeder observed in his Waechter dissent that Kansas law imposes an implied duty upon the lessee to exercise the diligence of a prudent operator, having due regard for the interests of both the lessor and the lessee, “to obtain a market for the gas at the best price obtainable.” However, the authorities cited to support this proposition are from Oklahoma. 217 Kan. at 533-34.
In Maddox v. Gulf Oil Corp., 222 Kan. 733, 735, 567 P.2d 1326 (1977), cert. denied 434 U.S. 1065 (1978), a successful class action suit by lessors to recover interest on suspense royalties, we said: “It was the duty of Gulf under the lease contracts it had with its royalty owners to market the gas at the best prices obtainable at the place where the gas was produced.”
Amoco also relies on Holmes v. Kewanee Oil Co., 233 Kan. 544, 664 P.2d 1335 (1983), cert. denied 474 U.S. 953 (1985), and Matzen, 233 Kan. 846. In Holmes, again, lessors claimed that under market value leases, they were entitled to royalties based on market value prices that were higher than the prices for which gas was sold under a gas purchase contract. We found that the “[m]arket value of gas is that price which would be paid by a willing buyer to a willing seller in a free market.” 233 Kan. at 544, Syl. ¶ 5. We upheld a judgment awarding the lessors royalties on the higher market value with respect to gas sold through the date of the trial. 233 Kan. at 551-53.
In Matzen we reaffirmed Waechter and Lightcap and adopted the interpretations of market value and proceeds set forth in Light-cap. A major question left undecided by Lightcap was: “How is the free market value of natural gas to be determined in a highly regulated interstate market?” Matzen, 233 Kan. at 852. Matzen affirmed the district court’s finding that the realistic guide to market value was the maximum Federal Power Commission (FPC) regulated price, a price at which gas was actually being sold from the Hugoton field. 233 Kan. at 853, 860.
Amoco argues that the district court here imposed a much higher and unrealistic standard. According to Amoco, under Waechter, Lightcap, Holmes, and Matzen, royalty owners under a proceeds lease are merely entitled to a share of money received from the actual sales of gas; royalty owners under a market value lease are merely entitled to a share of the market value which is determined by what a willing buyer would pay to a willing seller in a free market.
The Smith Class correctly points out that in oil and gas leases, lessees are bound by the covenant to market gas. See Robbins v. Chevron U.S.A., Inc., 246 Kan. 125, 134, 785 P.2d 1010 (1990). The nature of the duty is that “[o]nce oil or gas is discovered in paying quantities, the íessee has an implied obligation to produce and market production diligently.” 246 Kan. at 131. The lessors assert that one component of the lessee’s required diligence is the attendant duty to obtain the best price in gas contracting. See Kramer & Pearson, The Implied Marketing Covenant in Oil and Gas Leases: Some Heeded Changes for the 80’s, 46 La. L. Rev. 787, 812 n. 151 (1986) (citing the Schroeder, J. dissent in Waechter as Kansas authority). According to the Smith Class, Amoco should not have sought relief from the 1950 contract in the first place. However, because Amoco did, it should be held to account for the economic impact of its conduct.
The Smith Class looks to Watts v. Atlantic Richfield Co., 115 F.3d 785 (10th Cir. 1997). Watts is a diversity summary judgment case involving claims by lessors against their lessee. The Watts les sors asserted that Atlantic Richfield (ARCO) failed: (1) to pay proceeds received in a settlement with its gas purchaser, (2) to obtain the highest price available for the lessors’ gas, and (3) to protect the lessors’ units against drainage. ARCO had sued its purchaser Arkla for $279 million in a state court breach of contract action, claiming Arkla was obligated to pay the highest lawful price for NGPA § 103 gas. The litigation was settled. The lessors claimed royalties from ARCO on the settlement proceeds. The Tenth Circuit reversed on summaiy judgment, observing that ARCO’s decision to settle may have been prudent. However, the court, looking to Oklahoma oil and gas law, could not say as a matter of law that ARCO satisfied the implied covenant to market. 115 F.3d at 795. ARCO agreed with its purchaser to accept a price for gas lower than the price ARCO should have received under its gas supply contract. A genuine issue of material fact remained, particularly in view of ARCO’s conflicting positions. ARCO alleged that Arkla, its purchaser in the state court action, was obligated to pay the NGPA § 103 price for the lessors’ gas. Order 451 was not involved in Watts. We are dealing with a different factual setting here.
Amoco acknowledges that it had an obligation to act in good faith and to deal fairly with the Smith Class. The district court found that the lessors failed to prove that Amoco breached this obligation. Amoco asserts, however, that the Smith Class attempts to erroneously apply the obligation to unambiguous express provisions in the leases. See Havens v. Safeway Stores, 235 Kan. 226, Syl. ¶ 2, 678 P.2d 625 (1984) (saying that it is not for the court to reform an instrument by rejecting words of clear and definite meaning). It argues that the Smith Class asks the court to erroneously substitute a provision (duty to obtain the best possible price) for an existing unambiguous provision in the contract.
Amoco, recognizing the “scarcity of authority” in this area, cites Schroeder v. Terra Energy, 223 Mich. App. 176, 194, 565 N.W.2d 887 (1997), to support its contention that it had no duty to obtain the best possible price. The Terra Energy court found that an implied covenant to market did not require the lessee to obtain the “best available market price” because the royalty clause expressly required that the lessee only obtain the “prevailing market rate.” 223 Mich. App. at 194. In Terra Energy, the principal issue was whether “gross proceeds at the wellhead” contemplated deduction of post-production costs from the sales price of the gas. (The answer was yes.) Terra Energy did not find under Michigan law a lessee’s requirement to obtain the best market rate. 223 Mich. App. at 181, 194-95. Although instructional, Terra Energy is not persuasive in this jurisdiction.
Amoco argues that in Matzen, 233 Kan. 846, we rejected the standard adopted by the district court. However, Matzen is not as clear on the issue as Amoco suggests. Matzen recognized that the market is affected by “pervasive regulation” in focusing on whether market value may be higher than the contract price for purposes of calculating royalties in market value leases. See 233 Kan. at 857.
The Smith Class contends that it is illogical to say that the expressed royalty provisions override the lessee’s implied duties. They reason that setting aside a duty to obtain the best price possible ehminates the duty of good faith and fair dealing and the implied covenant to market. They suggest that the marketing duty arises in any lease in which royalties are paid in kind or based on the value of a fraction of the mineral produced or even on the payment of a fixed sum of money, citing 5 Williams & Meyers, Oil and Gas Law § 853, pp. 390.4-390.5. See also Kansas Baptist Convention, 253 Kan. at 724-26 (applying implied obligation of good faith in oil and gas lease). They advance the argument by asserting that: (1) they are “royalty owners whose leases qualified in 1989 for maximum lawful prices enacted to encourage production of their reserves,” and (2) Amoco had a duty of good faith and fair dealing to maintain the artificially high NGPA prices, “the best price available, for their gas,” by continuing royalty payments under the 1950 contract. The district court appears to have concluded that Amoco had a duty to obtain not the best price, but the best price possible, or stated another way, the best available price.
We have reversed and remanded on the statute of Hmitations issue. On remand the best possible price (best available price) issue raised by Amoco in its cross-appeal may again be present. Our difficulty in resolving the cross-appeal with a simple up or down pronouncement like, “yes” Amoco has, or “no” Amoco has not breached its implied marketing covenant here, is influenced by four observations. First, on Amoco’s concern that the district court’s ruling “would impose an unrealistic burden on gas producers,” we do not attempt here to resolve future litigation that may arise from different circumstances under implied and express covenants in oil and gas leases. Second, none of the authorities cited by the parties arose in a FERC Order 451 scenario. Third, the district court’s description of a breach of an oil and gas lease for failure to market at the “best possible price” is couched in terms of a producer “intentionally” selling gas “below the best possible price that could be obtained.” Fourth, none of the Kansas cases cited dealt with a “head to head” contest between a best possible price claim under an implied covenant and express marketing provisions of oil and gas leases.
This is a complex case with an 8-year litigation history. Kansas has always recognized the duty of a lessee under an oil and gas lease to use reasonable diligence in finding a market for the product or run the risk of causing the lease to lapse. Gilmore v. Superior Oil Co., 192 Kan. 388, 392, 388 P.2d 602 (1964).
In Robbins, 246 Kan. 125, we dealt with the implied covenant to market. We noted that the lessee has an obligation to market the produced minerals at reasonable terms within a reasonable time following production. We reversed summary judgment for the Robbins lessors and remanded. We said that a lessee’s activities are measured by the standard of a reasonably prudent operator and judged on the circumstances existing at the time of the alleged breach. The question of compliance with this standard is primarily a question of fact. 246 Kan. at 131, 133. We quoted the rule by which a lessee’s performance is measured.
“ ‘In absence of a controlling stipulation, neither the lessor nor the lessee is the sole arbiter of the extent, or the diligence with which, the operations and development shall proceed. The standard by which both are bound is what an experienced operator of ordinary prudence would do under die same or similar circumstances, having due regard for the interests of both.’ ” 246 Kan. at 131 (quoting Adolph v. Stearns, 235 Kan. 622, 626, 684 P.2d 372 [1984]).
In Robbins we reasoned that “[i]t is not the place of courts, or lessors, to examine in hindsight the business decisions of a gas producer.” 246 Kan. at 131. We quoted 5 Williams & Meyers, Oil and Gas Law § 856.3, p. 411 (1996): “The greatest possible leeway should be indulged the lessee in his decisions about marketing gas, assuming no conflict of interest between lessor and lessee. Ordinarily, the interests of the lessor and lessee will coincide; the lessee will have everything to gain and nothing to lose by selling the product.” 246 Kan. at 131-32. We followed the Williams & Meyers quotation, observing: “The treatise cautions against second-guessing an operator’s marketing decision.” 246 Kan. at 132.
The difficulty here lies in crafting an even-handed formula because of the lessors’ claim of conflict in the interests between Amoco and the lessors. Amoco admits that its obligations as lessee apply independently to each lease. The independent duty principle is applied to prevent Amoco from making the management of a given lease dependent upon the management of another lease. See Stamper v. Jones, 188 Kan. 626, 642, 364 P.2d 972 (1961).
At this juncture of our opinion, we repeat a finding of the district court that suggests both the conflict between the interests of Amoco and lessors and the dilemma confronting Amoco by invoking FERC’s Order 451. The district court (1) found that Amoco knew that the Smith Class gas dedicated to the 1950 contract was eligible for section 103 and 108 NGPA prices that were “much higher” than average spot market prices that Amoco could receive for released gas between August 1990 and December 1992 and (2) observed in denying the lessors’ motion for summary judgment: “It is uncontroverted that the Defendant herein entered into the good-faith negotiations with William Natural Gas and [was] aware of the impact of those negotiations upon the Smith Class ‘new’ gas prices.”
With our teaching of Robbins, the purpose of Order 451, and recognition that the gas at issue here was eligible for price negotiation under Order 451 in mind, the district court should apply a reasonably prudent operator standard in deciding whether Amoco properly carried out its implied covenant to market. Amoco’s implied covenant to market pricing obligation, under the facts here, is contained within its duty to act at all times as a reasonably prudent operator.
We have noted that Robbins requires Amoco to use due diligence to market the gas it produced within a reasonable time and at a reasonable price. When negotiating with Williams Natural Gas under good-faith negotiating provisions, Amoco had a marketing duty to each of its lessors.
It appears that the good-faith negotiating provisions allow a producer and a purchaser to raise gas prices in some contracts and lower gas prices in other contracts. Here, Amoco took advantage of the good-faith negotiating provisions, and the Smith Class royalty payments were reduced. We note that Amoco was also sued by the Youngren Class (Youngren v. Amoco, Case No. 89 CV 22) for failing to invoke Order 451 at an earlier time to increase the price of gas produced by their leases. The Youngren Class’ (most of Amoco’s royalty owners) gas sold for the low maximum lawful prices for old gas. Amoco was faced with conflicting demands either to renegotiate or to not renegotiate. FERC adopted Order 451 to resolve pricing distortions that had resulted from the NGPA’s pricing structure. FERC’s Order 451 affects Amoco’s implied covenant to market. Under the reasonably prudent operator standard, Amoco must not only consider its own economic interest but also take into account the interest of the Smith Class.
An observation made in the American Bar Association Section of Natural Resources Law suggested the situation now before us:
“On June 6, 1986, FERC issued Order 451, 51 Fed. Reg. 22,168 (June 18, 1986), which intended to substantially increase U.S. natural gas reserves and to offer natural gas pipelines a way out of the heavy take-or-pay liabilities they face at the same time that it pushes the gas industry an additional step toward complete deregulation. What Order 451 does is to give producers of natural gas still regulated at low prices under sections 104 and 106 of the Natural Gas Policy Act of 1978 tire right to negotiate with their purchasers for higher prices. Of course, leases will remain profitable longer if producers receive higher prices, and so U.S. gas reserves will be increased.
“The catch from the producers’ viewpoint is that if a producer requests renegotiation of prices for low-priced gas, it must also lay on die table for renegotiation its higher-priced contracts. The scheme is that low-priced contracts will be negotiated to a higher price more clearly reflecting the value of the gas in the market, while high-priced contracts with heavy take-or-pay obligations will be negotiated to a lower price.” Lowe, Gas Rule May Trigger Implied Covenants Problem, 2 Natural Resources & Environment 35 Winter (1987).
We do not feel that renegotiating under FERC’s deregulation policy should expose Amoco as a common lessee to automatic liability under its implied covenant to market as a reasonably prudent producer. We believe that the better analysis involves a fact-specific approach for evaluating the Smith Class’ claim that Amoco’s actions under Order 451 breached the implied covenant to market. We reason that the implied covenant to market is to be enforced with a consideration given to the purpose of Order 451. See Ceiling Prices; Old Gas Pricing Structure, 51 Fed. Reg. 46762-63 (1986) (rehearing and clarification of Order 451). FERC also intended the elevated ceiling price scheme to stimulate the production of low-cost gas, “which represents an assured and reliable supply available at the lowest reasonable cost.” 51 Fed. Reg. at 46767.
Sword v. Rains, 575 F.2d 810 (10th Cir. 1978), reviewed the circumstances of the NPGA’s regulatory scheme in evaluating the reasonableness of a lessee’s actions. The Rains court considered the lessee’s action of delaying 10 months in arranging a gas purchase contract and selling the gas on the interstate market. Rains held that the lessee did not breach the duty to market with due diligence. 575 F.2d at 813. At the time the lessee attained production, “gas sold in intrastate commerce went for a higher price than that sold in interstate commerce.” 575 F.2d at 813. Thus, normally it would have been desirable for the lessee to sell the gas to an interstate purchaser. Rains acknowledged that the FPC’s Order 428, which allowed small producers to sell gas at prices above the current interstate price ceiling, had greatly influenced the lessee’s decision to sell in the interstate market. Rains also noted that the lessee’s delay in finding an interstate market was due in part to the “rather chaotic and uncertain market conditions resulting from” a federal appellate court decision that “struck down the small producers’ exemption.” 575 F.2d at 814. Rains considered these factors in analyzing the lessee’s implied marketing duties under the lease. We agree with the Rains analysis.
The purpose of FERC Order 451 was to bring some rationality to natural gas pricing. The balancing approach suggested in Rains takes into account particular facts and circumstances affecting Amoco’s marketing decision. Whether Amoco has performed its duty under the implied covenant to market here is a question of fact. Aldolph v. Stearns, 235 Kan. at 626. The decision to invoke Order 451 and enter into renegotiation rests with Amoco, which was in a position to evaluate the potential benefits and losses for its lessors. The basic obligation to act as a reasonably prudent operator remains. Amoco should not be allowed to manipulate the procedure to receive an undue benefit for itself. As an oil and gas lessee, Amoco was in control of marketing decisions. The ultimate question for the district court is fact specific and includes the observation in its June 2, 1998, rulings denying summary judgment: Did Amoco’s actions under Order 451 breach the implied covenant to market? The task for the finder of fact is balancing any conflict of interest that may follow invoking Order 451 and embarking on good-faith negotiating provisions, tempered by the regulatory background and national policy reflected under the NGPA and the purpose of FERC’s Order 451. This balancing of interests is to be linked with the following guidelines reflected in the teaching from Robbins:
1. Amoco’s conduct will be evaluated by considering “ ‘what an experienced operator of ordinary prudence would do under the same or similar circumstances, having due regard for the interests of both [lessor and lessee].’ ” 246 Kan. at 131.
2. Evaluation of Amoco’s conduct under the prudent operator standard is a question of fact.
3. The district court must apply the prudent operator standard to the facts as they existed at the time Amoco took the action complained of.
4. The lessors have the burden of proof.
5. The facts are not contested, and Amoco’s actions are not patently imprudent; thus, expert testimony will be required to establish a breach of die covenants alleged. 246 Kan. at 131-34.
Reversed and remanded.
Davis and Larson, JJ., not participating.
David S. Knudson, J., assigned.
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The opinion of the court was delivered by
Six, J.:
Gyola Diggs appeals her conviction for the first-degree premeditated murder, K.S.A. 21-3401(a), of her husband Brian Diggs. Our jurisdiction is under K.S.A. 22-3601(b)(l) (a conviction resulting in a life sentence receives automatic review by this court).
We consider whether the district court erred: (1) by denying Diggs’ motion for a new trial, (2) by granting the State’s motion in limine, (3) by allowing an emergency medical technician (EMT) volunteer to testify on how long the victim had been dead, and (4) in failing to give a note-taking instruction to the jury.
Diggs also claims error because of: (a) a denial of effective assistance of counsel, (b) prosecutorial misconduct, and (c) cumulative error.
Finding no reversible error, we affirm.
FACTS
Defendant Gyola Diggs and her husband Brian lived with their 3 children in Logan, Kansas. Diggs worked as a housekeeper at a nursing home. On the morning of July 30, 1997, she bought supplies for baking cakes, talked with Brian, and baked cakes for almost 4 hours. Brian ate cereal for dinner while he watched television and went to bed around 8:30 p.m. Diggs went to bed around 10:30 p.m. The children spent the night with relatives.
Diggs called 911 at approximately 12:30 a.m., reporting that someone had broken into the house and shot her husband. She testified that after she had fallen asleep, a noise woke her up. She thought one of the children was coming downstairs to the master bedroom. She looked for her sweat pants and glasses and then realized that the children were not home. She said she heard another noise near the bedroom doorway, but she did not see anyone there. She panicked, hid on the floor by the side of the bed, and covered her head with her arms. She heard two loud shots in the bedroom. Then, she heard what might have been footsteps on the wooden floor. She put on her glasses and turned on the light. Brian, who was lying in bed, had been shot in the back of the head. Diggs turned off the light and backed out of the bedroom. Thinking she was going to be sick, she ran to the bathroom. Then, she wandered around, turned on the porch lights, and observed that the exterior door off the dining room was open. Although the door was normally unlocked, Diggs testified the door was never left open, so she realized that she might be in danger.
The EMTs arrived within 10 minutes of the 911 call. Diggs came out of her house twice as the EMTs stood in her front yard. She said nothing to them. She testified that she watched the EMTs from her kitchen window, “wondering why they weren’t coming in.” Cathy States, an EMT, followed Diggs inside. States noticed that a fresh pot of coffee was brewing and that the pot was already half full. According to Diggs, she had prepared the coffee before she went to bed, so she simply must have turned on the coffee maker.
Brian was found nude on the bed in the master bedroom. He had two gunshot wounds in the back of his head. States observed that Brian’s fingers were stiff. She determined that lividity and rigor mortis had begun to set in. States concluded that Brian had been there for at least 15-20 minutes. The blood on the sheets was dark and starting to dry, and the blood pattern on Brian’s back was dry. EMT Robert Noone observed that the blood coming from Brian’s nose and mouth was thick and coagulated. Noone also noticed that Brian’s hands were stiff and determined that rigor mortis had set in. Diggs told police that she called 911 after the shots were fired and that she was still on the phone when the EMTs arrived just minutes later.
The murder weapon, Brian’s .357 magnum, was found in the back of Brian’s pickup truck that was parked at the house. Officers found the gun holster on the porch. Diggs said she and Brian were the only people who handled the gun, except for 1 or 2 occasions when her brother used it for target practice. According to Brian’s brother, Diggs claimed “she was a better shot than Brian.” Brian kept his gun in a box stored in a drawer under their waterbed. Occasionally he left the gun in the glove compartment of his pickup truck or in the kitchen. The Kansas Bureau of Investigation (KBI) investigated the murder. There was neither evidence of a forced entry nor of any intruder. Forensic pathologist Donald Pojman testified that the gun would have been fired within 2 feet of the victim’s head. In 1993, Diggs and the children moved to Logan, Kansas, after the couple separated while living in Colorado. The couple reconciled shortly after the move. Diggs was hospitalized in 1994 after attempting suicide. Several months later, she started attending counseling sessions at a mental health center. She testified that by November 1995, she was “at wits’ end.” She said she and Brian had the worst argument of their marriage, during which Brian accused her of cheating on him. She said Brian was abusing his prescribed codeine and mixing it with alcohol. Brian taunted her to kill him. Diggs responded, “If it happens, it won’t be by my hands because you are doing a good enough job yourself.”
A co-worker, Georgia Merklein, testified that Diggs told her the details of a plan to kill Brian. The plan included four steps: (1) making sure the children were at her mother’s house, (2) having sex with him, (3) feeding Brian a good meal, and (4) overdosing him on insulin. Diggs also discussed killing Brian with co-worker Archie Dooley. She admitted telling Merklein, - “[I]f he [Brian] doesn’t stop, I’m going to kill him,” but she said that Merklein suggested using insulin so that Diggs would not get caught.
Merklein reported Diggs’ threat to the mental health center. Diggs’ counselor confronted Diggs with the reported plan to kill Brian. Diggs did not deny making the plan but said “it had all changed now.” The counselor and Diggs talked about alternatives, such as divorce and getting Brian professional help. Several days later at work, Merklein found notes from Diggs which suggested that Diggs did not want Merklein to tell anyone of their conversations about lolling Brian.
Diggs had Brian committed to Lamed State Hospital in April of 1996. She filed for a divorce in May. After receiving treatment at Larned and attending joint counseling sessions, Diggs and Brian reconciled. In Marcia 1997, Diggs told Brian’s stepmother that sometimes she got so mad at Brian that “she could just kill him.” Brian’s brother and father testified that Brian was “doing pretty good” and “feeling better than he had for a long time.”
On July 30, 1997, Diggs’ brother-in-law, James Gustafson, visited the Diggs’ house, so that Brian could work on James’ car. Diggs could not think of a time that James had previously been to their home in Logan. She testified that James and Brian “hated each other” because Brian owed James around $800. James testified that several years ago, he once talked to Brian about Brian’s mistreatment of Diggs and threatened to “beat him like a fly” and “keep [him] in [his] own house,” like Brian had allegedly done to Diggs. James said that about 2 months before Brian’s death, he apologized to Brian, and they became friends.
The KBI’s investigation discovered only Brian’s latent fingerprint at the scene. No blood was found on Brian’s clothing or on the gun.
DISCUSSION
We first take up Diggs’ claim that the district court erred by denying her motion for a new trial. She contends that her rights to a fair trial and due process were violated by the State’s failure to disclose an alleged agreement between the State and Archie Dooley, a State’s witness, in exchange for Dooley’s testimony. Our standard of review is abuse of discretion. See State v. Franklin, 264 Kan. 496, 498, 958 P.2d 611 (1998). Diggs filed a pretrial motion in which she requested all exculpatory information. Diggs correctly observes that evidence of an agreement with the State to recommend leniency in the sentencing of a prosecution witness in exchange for the witness’ testimony would be the type of evidence that must be revealed to a defendant. See State v. Wilkins, 269 Kan. 39, 42, 5 P.3d 520 (2000). If there was a deal between Dooley and the State, there is no question but that the evidence would be exculpatory. See State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997). However, Diggs fails to show that Dooley made a deal with the State before he testified. A brief explanation of how the alleged deal developed is necessary. At a pretrial conference on December 15,1998, the State raised the issue of a conflict of interest between defense counsel David O. Baumgartner and Diggs. Baumgartner had also represented Archie Dooley. The prosecutor told the court that Dooley was in prison. The State filed a motion in limine to exclude reference to Dooley’s convictions for sex crimes and his status as a prisoner. It appears that the motion was granted, since this evidence was not admitted at trial.
About 3 weeks after Diggs’ trial, Dooley wrote a letter to the prosecutor saying in part:
“Please be advised, that I am writing you about an agreement that we made regarding my testimony on the murder of Brian Diggs.”
The prosecutor replied, saying, “Contrary to your letter, no promises of any kind were made to you in exchange for your testimony. You were specifically advised that no such promises were made. I have no knowledge of any promise or agreement with you in exchange for you testimony.” Copies of both letters were sent to defense counsel.
Diggs filed a motion for a new trial based on the alleged agreement between the State and Dooley in exchange for his testimony. Dooley had testified at the preliminary hearing regarding a statement made by Diggs. Dooley had allegedly talked to the prosecutor after the preliminary hearing and asked if the prosecutor “could help [him] out.” He claimed that the prosecutor told him, “I’ll see what I can do.”
At a hearing on the motion for a new trial, the prosecutor testified the alleged agreement was “pure fantasy”; he had made no agreement of any kind with Dooley. He was asked about what he and Dooley had discussed in the courtroom after the preliminary hearing. The prosecutor related that they had discussed the move of Dooley from the Lansing prison to the prison at Ellsworth to be nearer Phillipsburg, the place of trial. According to the prosecutor, Dooley was worried he would be labeled a “snitch” or “rat” and approached the deputy sheriff to have him moved. An official request to the Department of Corrections was made and Dooley was moved to Ellsworth during the trial.
Sheriff Leroy Stephen was present during the conversation between Dooley and the prosecutor. He remembered the prosecutor telling Dooley he would “see what he could do” about sending Dooley back to Lansing. He did not recall an agreement in exchange for Dooley’s trial testimony. Dooley was eventually moved back to Lansing.
The district court found:
“[T]his is an attempt on [Dooley’s] part to try to get himself out of prison for time that he owes for crimes he committed. The Court finds no credit, no merit in Mr. Dooley’s testimony concerning any agreement of Mr. Dooley and [the State] concerning time reduction.
“Besides, his statement simply was is there anything you can do about the time, diere was no promise even under his words if diat would have occurred, so the court finds no merit in Mr. Dooley’s aspect diere that would warrant a new trial.”
We agree there was no agreement to disclose and, thus, no error.
The State’s Motion in Limine
The State filed a motion in limine in which it asked the district court to prohibit the defense from attempting to impeach Dooley with his sexual crime convictions and his status as a prisoner. Diggs argues that the district court erred by granting the motion, thus preventing Diggs from questioning Dooley about his status as a prisoner. She contends that the court’s decision erroneously restricted her ability to impeach the witness. We disagree. The district court did not abuse its discretion. See State v. Fulton, 269 Kan. 835, 846, 9 P.3d 18 (2000). Dooley had been convicted and sentenced for two counts of aggravated indecent liberties with a child and one count of aggravated sexual battery. The parties agreed that Dooley’s crimes of conviction were inadmissible under K.S.A. 60-421. The sex crimes did not involve dishonesty or false statements. See State v. Darling, 208 Kan. 469, 477, 493 P.2d 216 (1972).
Effective Assistance of Counsel
Next, Diggs contends that she was denied the right to effective assistance of counsel. She argues that a conflict of interest existed because Baumgartner simultaneously represented Diggs and Archie Dooley, a prosecution witness.
This issue involves a question of law, over which we have unlimited review. Our standards for considering a claim of ineffective assistance of counsel are set forth in State v. Davis, 271 Kan. 892, 26 P.3d 681 (2001) (citing State v. Sperry, 267 Kan. 287, 297-98, 978 P.2d 933 [1999]):
“[A] defendant must establish that: (1) counsel’s performance was deficient, which means counsel made errors so serious that counsel’s performance was less than that guaranteed by the Sixth Amendment to tire United States Constitution, and (2) die deficient performance prejudiced die defense, which requires a showing of a reasonable probability that but for counsel’s errors, die result of die proceeding would have been different.”
At the June 22, 1998, prehminaiy hearing, Dooley started to testify. The hearing was interrupted by Baumgartner. He told the court in chambers that he used to represent Dooley. After undergoing questioning, Dooley told the court that as a witness for the State, he would be “comfortable” with Baumgartner examining him. Dooley said that he and Baumgartner had never discussed Diggs’ case or Dooley’s job at the nursing home where Diggs was also employed.
At the December 15, 1998, pretrial hearing, the State argued that there was a conflict of interest in Baumgartner’s representing Diggs while he was still representing Dooley. The district court réviewed the time line of events. Brian was killed on July 31,1997. Around August 1997, Diggs retained Baumgartner as defense counsel. On January 12, 1998, Baumgartner represented Dooley at a plea hearing in an unrelated case. Dooley pled guilty to two counts of aggravated indecent liberties with a child and one count of aggravated sexual battery. Baumgartner represented Dooley at his sentencing hearing on February 9, 1998. Diggs was charged with her husband’s murder on April 14, 1998.
The district judge asked Diggs if she wanted the court to appoint an independent attorney to consult with her on the conflict question. She initially declined. The district judge also said:
“The way this case comes up, and the question is, is whether or not he will provide you effective representation of counsel, whether you believe his interest will be divided from your representation because of his representation of Mr. Dooley. Okay. You know, it is your constitutional right for effective assistance of counsel. Okay. And you need to know what’s happened here, and it’s your desire to waive those, is that correct.
“MS. DIGGS: Yes, sir.”
Baumgartner asked for a few minutes to speak with Diggs. At Baumgartner’s urging, she asked the district court to appoint an attorney for her to explore the conflict issue. The district court appointed Donald Hoffman, who wrote the following to the court:
“I have visited with Mrs. Diggs by phone and in person. Based upon my conversations with her, it would be . . . my opinion drat in view of State «. Jenkins, 257 Kan. 1074, die trial court should hold an in-depdi hearing on die question of conflict of interest. Upon die scheduling of the hearing, I would anticipate diat die court should hear testimony from [Baumgartner] and his former client, Archie Dooley. After Mr. Dooley and Mr. Baumgartner have testified, only then could Mrs. Diggs decide to waive the conflict.”
At the conflict of interest hearing, it was noted that Dooley was initially interviewed by the KBI in August 1997. However, Dooley testified that he never discussed the KBI interview with Baumgartner. He agreed that the information he gave Baumgartner dealt solely with charges unrelated to Diggs’ case.
Baumgartner testified that during his representation of Dooley he was unaware that Dooley was a potential witness in Diggs’ case. He said he did not make the connection when the Attorney General’s office gave him a copy of the warrant. He also testified that he did not share any information about Dooley with Diggs.
Then, the district judge questioned Diggs:
“THE COURT: What is your position concerning Mr. Baumgartner continuing to represent you?
“THE DEFENDANT: I wish that he . . . continue.
“THE COURT: If you wish, die Court would appoint additional, anodier attorney for you. Do you understand that?
“THE DEFENDANT: Yes, I understand that.
“THE COURT: And are you requesting that to happen?
“THE DEFENDANT: No, sir.
“THE COURT: How long did you spend with Mr. Hoffman?
“THE DEFENDANT: I would say roughly an hour.
“THE COURT: Okay. And did he discuss with you the issues concerning potential conflicts and die issues concerning Mr. Dooley and Mr. Baumgartner?
“THE DEFENDANT: Yes, he did.
“THE COURT: And after going through that and having your own attorney for that issue, are you still prepared to waive any issue concerning conflict?
“THE DEFENDANT: Yes, sir,-1 am.
“THE COURT: You realize if die Court accepts your waiver here today, if you were convicted by a jury and the matter goes up on appeal, this would not be an issue you could raise again?
“THE DEFENDANT: Yes, Your Honor.”
Diggs argues on appeal that despite her waiver, the district court should have disqualified Baumgartner because “an actual conflict of interest existed.” We disagree. The fact that a conflict of interest may exist does not lead to the conclusion that counsel’s assistance was ineffective. See State v. Wallace, 258 Kan. 639, 646, 908 P.2d 1267 (1995); Schoonover v. State, 218 Kan. 377, Syl. ¶ 3, 543 P.2d 881 (1975), cert. denied 424 U.S. 944 (1976).
Diggs relies on State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995), and In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 781 P.2d 731 (1989), cert. denied 494 U.S. 1070 (1990). A review of both cases shows that neither is persuasive under the facts here. We observed in reversing Jenkins’ convictions that although Jenkins did not object to appointed defense counsel’s representation at trial, the district court was aware that an actual conflict existed. At the preliminary hearing, Jenkins’ counsel became concerned about the appearance of a possible conflict of interest because she had previously represented a key witness on unrelated burglary charges. In addition, Jenkins had not waived the conflict on the record. Jenkins, 257 Kan. at 1087.
In Hoang, the petitioner was represented by the Sedgwick County Public Defender’s Office. The day before trial, defense counsel learned that his office had represented Binh Van Tran, the key prosecution witness against Hoang. The next day, the district court was informed of this situation after opening statements. The district court was concerned with counsel’s anticipated cross-examination of Tran, but counsel noted that Tran had been represented by another attorney in his office and counsel did not believe he had a conflict. The State objected. Defense counsel was disqualified. The district court declared a mistrial. New counsel was appointed. Hoang sought dismissal of the charges, arguing that the mistrial had been granted improperly. 245 Kan. at 561. We disagreed and affirmed, holding that the district court did not abuse its discretion in granting the mistrial.
Diggs’ situation, unlike either Jenkins or Hoang, probed the necessity of disqualifying Baumgartner before trial. Here, Baumgartner brought the possibility of a conflict to the district court’s attention. As required under Jenkins, the district court initiated an inquiry, considered the facts at a special hearing, and prudently appointed independent counsel to insure that Diggs’ Sixth Amendment right to counsel was not violated. See State v. Bowen, 27 Kan. App. 2d 122, 129-30, 999 P.2d 286 (2000) (finding that die court must initiate an inquiry where it is advised that a potential conflict exists) (citing U.S. v. Migliaccio, 34 F.3d 1517, 1527 [10th Cir. 1994]). In addition, Diggs fails to show that Baumgartner’s representation was inadequate. Dooley’s unrelated case was over. His convictions and prisoner status were not admissible at Diggs’ trial. No aspect of Baumgartner’s previous representation of Dooley affected the cross-examination. Moreover, Diggs waived any possible conflict on the record. The district court did not err by allowing Baumgartner to remain Diggs’ defense attorney.
Prosecutorial Misconduct
Diggs contends that die prosecuting attorney committed misconduct (1) during opening statements, (2) while cross-examining Diggs, and (3) in closing argument, thus depriving her of her constitutional right to a fair trial.
Opening Statements
We first consider Diggs’ opening statement claim. She acknowledges that she did not object to the prosecutor’s opening comments at trial. However, the contemporaneous objection rule does not apply to opening statements because it is impossible to foresee which comments counsel might fail to establish through the evidence at trial. “Absent substantial prejudice to the rights of die defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which the prosecutor does not attempt to prove at trial.” State v. Ruebke, 240 Kan. 493, 503-04, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
Diggs focuses on the following five comments made by the prosecutor in his opening statement:
(1) “And she’s [Diggs] talking to Georgia [a witness for the State] and she says, asks Georgia what was the best way to kill somebody and not get caught.”
(2) “And then die defendant starts expressing to Georgia Merklein again diat she wanted to kill her husband, making statements beginning in March 1996, all die way up until April, May, 1997, two mondis before the murder, that if she could kill him and not get caught, she would. She tells her that over and over again.”
(3) “The rest of the gun was wiped clean.”
(4) “What diey discover is that die defendant told many, many people what happened diat night, and each time she told die story, it was a little bit different because when you tell the truth, ladies and gentlemen, the story stays the same because you have die basis as die trudi. When you’re lying, it gets different a little bit because you don’t remember what you told die last time. Okay.”
(5) “[Brian] had obviously eaten a big meal.”
At trial, Merklein testified that (1) Diggs told her “she would kill Brian if she knew she could get away with it,” to which Merklein volunteered that insulin was the only way that could happen, (2) she volunteered information to Diggs all day about using insulin, (3) in March 1997 (not 1996), Diggs said she wanted to kill Brian, and (4) Diggs discussed killing Brian many other times.
A forensic scientist for the KBI testified that the only fingerprint found on the murder weapon was that of the victim. Although the prosecutor erroneously stated in opening statements that the gun had been wiped clean, this error was dispelled by the cross-examination of the KBI scientist. Thus, Diggs was not prejudiced by the misstatement.
Diggs also complains that the prosecutor said the forensic pathologist would testify that “there was a lot of gastric contents, [the victim] had obviously eaten a big meal.” On cross-examination, forensic pathologist Donald Pojman testified that the victim had 200 cubic centimeters of stomach contents, or about 5 to 7 ounces of fluid. Diggs essentially disputes whether this amount consisted of “a lot” of gastric contents. When asked if there was any indication that Brian ate a large meal before his death, the doctor said, “If he would have, it would have been several hours prior to death.” His written report said he found 200 cubic centimeters of gastric contents.
Diggs contends that the jury could have thought it was mistaken about what they heard from witnesses and could have resolved any confusion by relying on what the prosecutor said in opening state ments. Diggs has not shown prejudice or bad faith by the prosecutor. See Ruebke, 240 Kan. at 503-04.
Improper Cross-examination of Defendant
At trial, Diggs took the stand in her own defense. On appeal, she argues that the State committed prosecutorial misconduct during her cross-examination by asking her to comment on the truthfulness of the State’s witnesses.
Twice, Diggs’ objections were sustained when the prosecutor asked if a witness was “lying” or “mistaken.” However, as the State points out, Diggs largely failed to object to the manner in which she was cross-examined by the State. In State v. Pabst, 268 Kan. 501, Syl. ¶ 2, 996 P.2d 321 (2000), we concluded that prosecutorial misconduct maybe reviewed on appeal “regardless of whether the issue of prosecutorial misconduct is preserved by an objection at trial.” The plain error rule may be used when “the prosecutor’s misconduct is so prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice.” State v. Sperry, 267 Kan. 287, 309, 978 P.2d 933 (1999). This standard of review is applicable when a prosecutor is cross-examining a defendant who has chosen to take the stand. State v. Manning, 270 Kan. 674, 697, 19 P.3d 84 (2001).
Diggs cites instances involving at least six different State’s witnesses. The first incident, which is representative, occurred when the prosecutor asked Diggs about the testimony of Georgia Mercklein, a co-worker. The following took place:
“Q. [PROSECUTOR]: Okay. So you would deny, when Georgia Mercklein told this jury that you asked for help in committing this crime, that would be true or false?
“A. That would be false.
“Q. And you admitted to [Betty Stamper] that you had a plan in effect to kill your husband, is that not true?
“A. Yes.
“Q. Okay. And she asked you about the plan, true?
“A. No, no; she didn’t ask me.
“Q. She didn’t ask about the plan. So when she testified she did ask you about the plan, was she lying or mistaken?
“A. She did not ask me about the detailed plan and I believe she said so in her testimony, that we discussed alternatives to this plan.
“Q. You heard the testimony of Georgia Mercklein when she told us in March of 1997, you again said, Tf I could kill him and get away with it, I would do so.’ Do you remember her testimony?
“A. I do.
“Q. Is that true or false?
“A. That is false.
“Q. Is she lying or mistaken?
“A. She is lying.
“Q. She is lying?
“A. I don’t believe she’s mistaken.” (Emphasis added.)
A review of the record shows that in her testimony, Diggs contradicted the testimony of some of the State’s witnesses and agreed with testimony of others. We reject the argument that the defendant opened the door to the “they were lying” testimony by questions and responses given in the defendant’s direct testimony. See Manning, 270 Kan. at 701. The prosecutor’s asking Diggs if other witnesses lied or were mistaken was improper. See Manning, 270 Kan. at 702. Had the prosecutor merely asked about her previous statements to witnesses, allowing the jury to draw its own conclusions regarding the witnesses’ credibility, the cross-examination would have been unobjectionable. See United States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995).
Our analysis of prosecutorial misconduct requires an examination of whether the improper questions prejudiced the jury and denied Diggs a fair trial. See Manning, 270 Kan. at 697. Diggs contends that the prosecutor’s questioning tactics require a reversal of her convictions. We disagree. Given Diggs’ responses and the circumstantial evidence against her, the cross-examination did not prejudice the jury against Diggs and deny her a fair trial.
Misconduct During Closing Arguments
Diggs also contends the prosecutor committed misconduct during closing arguments. Generally, reversible error cannot be predicated upon a complaint of prosecutorial misconduct during closing arguments where no contemporaneous objection is lodged. State v. Finley, 268 Kan. 557, 571, 998 P.2d 95 (2000). We have no objection here. However, if the prosecutor’s statements rise to the level of violating either a defendant’s right to a fair trial or the Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. 268 Kan. at 571.
The analysis of the effect of a prosecutor’s alleged improper remarks in closing argument is a two-step process. First, we must decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, we must decide whether the remarks are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial. State v. Campbell, 268 Kan. 529, 539, 997 P.2d 726 (2000) (citing State v. Lumley, 266 Kan. 939, Syl. ¶ 12, 976 P.2d 486 [1999]).
We have reviewed the State’s closing argument and find the prosecutor’s comments were within the bounds afforded counsel for argument.
Diggs argues that the prosecutor misstated the State’s burden of proof and erroneously shifted the burden to the defense. She notes that we have held that the term “reasonable doubt” does not need to be defined because the words themselves describe the meaning. See State v. Dunn, 249 Kan. 488, 493, 820 P.2d 412 (1991) (finding that “[although the instruction given failed to define reasonable doubt, the instruction is neither erroneous nor an incorrect statement of the law”). Diggs contends that the prosecutor erred by equating the “reasonable doubt” standard with “common sense” or “reasonable explanation.” She argues that the burden was shifted to Diggs when the prosecutor repeatedly asked the jury to consider whether Diggs’ actions were “reasonable.”
Here, unlike State v. Mitchell, 269 Kan. 349, 357-61, 7 P.3d 1135 (2000), the prosecutor did not define reasonable doubt as “common sense,” nor did he define it as a “reasonable explanation.” He told the jurors that they could apply common sense to the facts in their deliberations, including the determination of whether rigor mortis had already started setting in when the EMTs arrived at the scene of the murder. It appears that the prosecutor questioned whether certain facts were “reasonable” in order to argue to the jury that the facts did not create a reasonable doubt.
Not only did Diggs not object to the prosecutor’s argument, she also agreed with it. Her counsel said in closing:
“The State has that burden and that burden has to be beyond a reasonable doubt, and I agree entirely with [the prosecutor]. It’s not beyond any doubt, it’s beyond a reasonable doubt.”
The EMT’s Testimony
Diggs argues that the district court erred by allowing Cathy States, an EMT volunteer, to testify concerning how long Brian had been dead when she arrived at the scene. She asserts that such an opinion was beyond States’ training and qualifications. Whether an expert or lay witness is qualified to testify as to his or her opinion lies within the discretion of the district court. State v. Canaan, 265 Kan. 835, 848, 964 P.2d 681 (1998).
States was a volunteer EMT for Phillips County and responded to Diggs’ 911 call. At the preliminaiy hearing, the prosecutor asked her, “[I]n your impression, did you feel that you arrived on a scene that had just happened, or did you arrive on a scene that had been there a while?” Baumgartner objected, saying, “She’s giving a lay opinion about something that’s in the realm of professionals, Your Honor.” The court sustained the objection.
Diggs subsequently filed a motion in limine, in which she urged the court to limit the testimony of the EMTs at the scene of the crime. She argued that none of the EMTs who responded to the call had the qualifications to address issues such as rigor mortis, livor mortis, or the coagulation time of blood. The district court reserved judgment on the motion until it could hear the witnesses’ testimony.
At trial, States testified that she was trained to deal with trauma and illness. She had learned to look for signs and symptoms showing that an injured person had been “gone too long to resuscitate.” States testified that to make such a determination, she looked for lividity (pooling of blood) and rigor mortis (stiffness of joints).
Baumgartner objected to States’ talking about “rigidity,” “lividity,” and rigor mortis. The objection was overruled. Later in States’ direct examination, Baumgartner’s objection as to “lividity” was sustained. The district court ruled that States could indicate what she observed, but she was not to use the medical term “lividity.” When asked whether, based upon her training, rigor mortis was present, she testified that she thought it was. She also testified that the victim’s blood “appeared to be starting to dry and maybe clotting, looked like it had been there and had dried up somewhat more than [she] expected to see.” She said, “It’s very obvious that [the act] has just happened [when] the blood is still very wet and bright colored.” The prosecutor then continued to establish a foundation for States to testily on “lividity.” The opinion testimony objected to on appeal developed through further prosecution inquiry. After States testified that she determined that lividity was present in the victim, she concluded that the victim “had been there more than 15 to 20 minutes.”
“A. As I understood it, [lividity] it was present.
“Q. Which indicated to you what?
“A. That he had been diere more than 15 to 20 minutes.
“MR. BAUMGARTNER: I’m sorry, I didn’t hear her answer.
“THE WITNESS: That he had been there more than 15 to 20 minutes.”
No objection was made at this point. A timely and specific objection to the admission of evidence is necessary to preserve an issue for appeal. State v. Jamison, 269 Kan. 564, 569-70, 7 P.3d 1204 (2000).
On cross-examination, States admitted that this was the first time that she had observed what she believed to be lividity and rigor mortis in a victim. She did not know what effect the presence of brain matter would have on the timing of the coagulation of the blood. She did not know how long it takes blood to coagulate, nor did she know if the fact that the victim was laying on a waterbed would affect the timing of the coagulation of the blood.
We have found that to be competent as an expert, a witness must be skilled or experienced in the profession to which the subject relates. State v. Willis, 256 Kan. 837, 839, 888 P.2d 839 (1995). An expert witness “ ‘must be qualified to impart to the jury knowledge within the scope of his special skill and experience that is otherwise unavailable to the jury from other sources.’ ” 256 Kan. at 839.
Diggs relies on Willis, 256 Kan. 837, and State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), to support her contention that States should not have been permitted to draw such a conclusion. In Willis, we concluded that the district court erred in allowing a social worker to testify as an expert in the psychiatric field of post-traumatic stress disorder and rape trauma syndrome. 256 Kan. at 847. In Bressman, the emergency medicine physician who examined the victim at the hospital testified that, in her opinion, the victim had been raped. We noted that expert testimony that the victim had been raped "‘of necessity had to pass upon the credibility” of the victim’s story. Thus, we concluded that the district court erred in admitting die physician’s expert opinion. 236 Kan. at 303-04; cf. State v. Hayes, 239 Kan. 443, 447, 720 P.2d 1049 (1986) (finding that in a rape case, testimony of an attomey/rape counselor was limited to her actual physical observations and could not be extended to the area of expert opinion evidence on the medical probability of trauma).
In looking at States’ testimony, it appears that she testified as to her personal observations, basing her observations on her experience as an EMT. When she moved the victim’s fingers, the joints were stiff, suggesting to her that rigor mortis had begun. She noticed that the blood found at the scene was darker and dryer than she expected to see. She explained that she was trained to recognize lividity, or pooling of the blood, in victims in order to make a determination on whether to attempt resuscitation. She observed that lividity was present in the victim’s body. Based on her observations, she concluded that she and the other EMTs should not attempt resuscitation.
However, States also testified that lividity indicated to her that the victim “had been there more than 15 to 20 minutes.” Although determining the time of death was not within the scope of the special knowledge, skill, experience or training of States, the observations of an EMT regarding rigor mortis and lividity appear to be permitted in other jurisdictions. See Nicholson v. State, 319 Ark. 566, 573, 892 S.W.2d 507 (1995) (finding no prejudice where an EMT testified that when she arrived at the scene, “[s]he found a cold body with blood pooling which indicated [the victim] had been dead "quite a while’ and more than the ten minutes or so which would have been consistent with [the defendant’s] testimony”); Mayes v. State, 887 P.2d 1288, 1303-04 (Okla. Crim. 1994) (finding no fundamental error where an EMT testified that “[w]hen he loaded the body between 9:30 and 10 p.m., rigor had begun; and the body exhibited substantially more lividity, and was colder than it had been six hours earlier”).
States was not qualified to testify about the length of time Brian had been dead. Although no specific objection was made to the length of time question, Diggs’ counsel earlier had filed a motion in limine and had objected to the line of questioning during States’ testimony. While Diggs’ contention presents a close question, we conclude that any error was harmless because of other medical testimony.
Dr. Pojman, a forensic pathologist and deputy coroner, testified that the effect of brain matter in the blood causes the blood to begin clotting almost immediately. Blood on sheets or clothing would begin to clot within 5 to 10 seconds. He agreed that it would not have been uncommon to have seen dry blood on the victim’s back within 10 to 15 minutes of death. By 20 minutes later, most of the small spots of blood would be completely dry. Dr. Pojman also testified that the victim’s waterbed temperature was set between 85 and 90 degrees. According to Dr. Pojman, a heated waterbed would decrease the clotting and drying time. He also agreed that rigor mortis generally begins 2 to 4 hours after death.
Dr. Pojman’s opinion was consistent with the States’ observation that the victim had been there more than 15 or 20 minutes. Diggs was not prejudiced by States’ testimony.
Note-taking Instruction
Diggs contends that the district court erred in failing to instruct the jury regarding note taking. This contention lacks merit. Diggs admits that she did not request such an instruction at trial. We review this issue under a clearly erroneous standard. See K.S.A. 2000 Supp. 22-3414(3). Failure to give an instruction is clearly erroneous only if an appellate court reaches a firm conviction that there is a real possibility that the jury would have returned a different verdict if the instruction had been given. State v. Coleman, 271 Kan. 733, 739, 26 P.3d 613 (2001). The failure to give a formal note-taking instruction was not clearly erroneous.
Cumulative Error
Finally, we find no basis in the record to support Diggs’ contention of cumulative trial errors warranting reversal.
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The opinion of the court was delivered by
Larson, J.:
This appeal contends constitutional due process rights were violated when Robert E. McDonald’s term of probation was extended in proceedings where he was not afforded representation by an attorney.
The facts are undisputed. McDonald pled guilty to burglary and theft and was sentenced to an underlying prison term of 27 months, with probation granted for 24 months. He was also ordered to pay restitution of $4,087.24 and costs of $554.50.
A journal entry entered prior to the expiration of the 24-montih probation period extended the term for an additional year or “until the defendant has paid all costs and restitution in full.” A subsequent order likewise extended the term for an additional 1 year. Both orders showed the presence and consent of McDonald.
During the term of the second extension, McDonald appeared in person and by counsel at a parole revocation hearing conducted pursuant to K.S.A. 22-3716. Competent evidence, not challenged in this appeal, showed McDonald had violated the terms of his probation. The court so found and ordered the underlying prison sentence of 27 months to be served.
McDonald’s notice of appeal stated that he appealed “the revocation hearing and all adverse rulings of the District Court.”
McDonald failed to appeal either of the orders extending the term of his probation (and the time for such an appeal has long since expired, K.S.A. 22-3608). He now argues that both of those proceedings and the orders entered were lacking in jurisdiction because his due process rights were violated by his lack of counsel.
Although McDonald’s argument that he must be provided an attorney in any proceeding where the term of his probation is extended can be answered, the more difficult question is whether we have jurisdiction to consider what is in effect an attempt to collaterally attack two unappealed from orders. See State v. Delacruz, 258 Kan. 129, 137-39, 899 P.2d 1042 (1995) (collateral attack prohibited in part but allowed in part where the precise issue now appealed was not presented to the trial court); State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998) (collateral attack prohibited where the notice of appeal did not identify the rulings appealed from as being from prior proceedings, separate from the revocation hearing); State v. Woodling, 264 Kan. 684, Syl. ¶ 2, 957 P.2d 398 (1998) (collateral attack prohibited where we said: “An appellate court obtains jurisdiction over the rulings identified in the notice of appeal. Grounds for jurisdiction not identified in a notice of appeal may not be considered by the court.”).
We always have the obligation to question jurisdiction on our own motion, McDonald v. Hannigan, 262 Kan. 156, Syl. ¶ 1, 936 P.2d 262 (1997), and if the record discloses a lack of jurisdiction, the appeal must be dismissed.
McDonald attempts to legitimize his appeal by quoting the beginning sentence of K.S.A. 22-3504(1): “The court may correct an illegal sentence at any time.” As we stated in State v. Johnson, 269 Kan. 594, Syl. ¶ 3, 7 P.3d 294 (2000): “K.S.A. 22-3504(1) is a statute of limited applicability and may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined.” There is nothing illegal about the sentence in this case and the only question is whether the term of probation had expired which would prohibit the revocation of probation or whether it was properly and lawfully extended by the orders to which McDonald consented.
One way for McDonald to have raised this issue would have been under a K.S.A. 60-1507 proceeding questioning the trial court’s jurisdiction under subparagraph (a). However, we are well aware of the language of 60-1507(e) that “an application . . . shall not be entertained if it appears that the applicant has failed to apply for relief by motion, to the court which sentenced said applicant . . . .”
For the reasons stated above, the dismissal of this appeal might be proper. However, if McDonald is correct in his contention that he had the right to counsel when the term of his probation was extended, and he was not so advised or offered counsel, then he would be unlawfully incarcerated at this time. This would then raise a Sixth Amendment right to counsel argument which both the United States Supreme Court and our Kansas Supreme Court have viewed with more favor and a different approach.
We will not here attempt to restate an analysis of United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972), Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), and Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), which have held the Sixth Amendment to the United States Constitution requires that an indigent defendant in state court proceedings have counsel appointed for him or her. These cases, as well as Custis v. United States, 511 U.S. 485, 128 L. Ed. 2d 517, 114 S. Ct. 1732 (1994), were cited by our opinion in Delacruz, which considered a collateral attack on an uncounseled conviction used for sentence enhancement. While our appeal is not of an enhancement of sentence, Delacruz, 258 Kan. at 139, is instructive:
“The defendant . . . contends that he was not informed of his rights regarding his guilty pleas and his pleas were not knowingly and intelligently made. Under Custis, the defendant’s prior misdemeanor convictions, with the single exception of die battery misdemeanor conviction resulting in jail time, would not be subject to collateral attack. As the United States Supreme Court indicated in Custis, allowing a collateral attack on prior convictions on die basis of inadequate plea colloquies would force die sentencing court to look behind every conviction widi practically no record to rely on. On the other hand, the defendant’s conviction which resulted in jail time was apparently uncounseled and constitutionally invalid under both Scott and Gideon. Thus, the record raises a Gideon constitutional denial of counsel issue and is, therfore, subject to collateral attack.” (Emphasis added.)
Because McDonald contends he would not be incarcerated if he would have been provided counsel when the term of his probation was extended, we are obligated to consider this question of law. As stated in Custis, 511 U.S. at 494-95:
“There is thus a historical basis in our jurisprudence of collateral attacks for treating the right to have counsel appointed as unique, perhaps because of our oft-stated view that ‘[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.’ Powell v. Alabama, 287 U.S. 45, 68-89[, 77 L. Ed. 2d 158, 53 S. Ct. 55] (1932).”
Our result is in accord with our most recent decision in this area, State v. Chiles, 260 Kan. 75, Syl., 917 P.2d 866 (1996), in which we held: “A defendant does not have a constitutional right to collaterally attack a prior conviction used to enhance a current sentence unless the prior conviction was obtained in violation of the right to counsel. This principle bears extra weight in cases in which the prior conviction is based on a guilty plea.” Justice Abbott’s opinion in Chiles cites Delacruz and Custis, as well as other decisions, and our consideration of the issue raised in the instant appeal is not in conflict with the Chiles decision and reasoning.
We now consider whether there is either a statutory or constitutional requirement for counsel to be present when a probationer is faced with the choice of voluntarily extending his or her probation or forcing the court to order the extension after a modification hearing and judicial finding of necessity.
The statutory authorization giving jurisdiction to the trial court in this case to extend defendant’s probation period for nonpayment of restitution is K.S.A. 21-4611(e)(4) and (5):
“(4) If the defendant is . . . ordered to pay full or partial restitution, the period may be continued as long as the amount of restitution ordered has not been paid.
“(5) The court may modify or extend the offender’s period of supervision, pursuant to a modification hearing and a judicial finding of necessity. Such extensions maybe made for a maximum period of five years or the maximum period of the prison sentence that could be imposed, whichever is longer, inclusive of the original supervision term.”
Nowhere in the statute authorizing the extension of the probation period is the right to counsel mentioned. However, it is clearly found in K.S.A. 22-3716(b), which relates to revocation of probation. In setting forth the required revocation procedures, 22-3716(b) states: “The defendant shall have the right to be repre sented by counsel and shall be informed by the judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant.”
It is thus apparent there is no statutory right to counsel in Kansas at proceedings to extend the term of probation. Had the legislature determined that counsel should be mandated, it knew how to do so, as the provisions of K.S.A. 22-3716(b) clearly show.
The remaining question then becomes: Is counsel constitutionally required to be present when the term of probation is extended? We answer this question negatively.
We first point out our holding in a recent case involving right to counsel in proceedings where probation is revoked. See Brown v. Kansas Parole Board, 262 Kan. 903, 943 P.2d 1240 (1997). We looked in Brown to Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973), and found that the Kansas Administrative Regulation which did not permit the appointment of counsel to indigents was insufficient. Brown, 262 Kan. at 911-13. However, we held a notice of right to counsel and a lack of request for counsel, coupled with a negative finding by the trial court in a habeas corpus proceeding that the defendant failed to show she was unable to understand that right, met the Sixth Amendment requirements for parole revocation proceedings as set forth in Gagnon and Morrissey. Brown, 262 Kan. at 911-13.
Our facts here are much different than where a probationer faces an immediate loss of a liberty interest and incarceration. There is a considerably lower sense of urgency where the probation is extended in an effort to afford the probationer a greater amount of time in which to pay restitution. Our facts and McDonald’s predicament are significantly different from the teachings of Morrissey, Gagnon, and Brown.
Current federal case law on the right to counsel for probation extensions and other modifications is based, not on the Sixth Amendment, but rather the Sentencing Reform Act of 1984, 18 U.S.C. 3551 etseq., and Fed. R. Crim. Proc. 32.1(b), which states: “A hearing and assistance of counsel are required before the terms or conditions of probation . . . can be modified, unless the relief granted to the [probationer] upon [his] request or the court’s own motion is favorable to [him] . . . .” E.g., U.S. v. Stocks, 104 F.3d 308 (9th Cir. 1997); United States v. Chambliss, 766 F.2d 1520 (11th Cir. 1985); United States v. Warden, 705 F.2d 189 (7th Cir. 1982). Kansas has no such statutory provision.
However, prior to the enactment of the Sentencing Reform Act of 1984, federal case law unanimously agreed in light of Morrissey and Gagnon that a probation revocation hearing was not required when extending probation. U.S. v. Silver, 83 F.3d 289 (9th Cir. 1996) (arising from a crime committed prior to the effective date of the 1984 sentencing act); Forgues v. United States, 636 F.2d 1125 (6th Cir. 1980); United States v. Cornwell, 625 F.2d 686 (5th Cir.), cert. denied 449 U.S. 1066 (1980); United States v. Carey, 565 F.2d 545 (8th Cir. 1977), cert. denied 435 U.S. 953 (1978); Skipworth v. United States, 508 F.2d 598 (3rd Cir. 1975).
In each case, an ex parte order extending the defendant’s probation was found not to offend constitutional due process. While the opinions generally recognize that an extension of probation does result in deprivation of a limited liberty interest, they state that it is not equivalent to the “grievous loss” of liberty anticipated by the Supreme Court during probation revocation proceedings. Silver, 83 F.3d at 292; Forgues, 636 F.2d at 1127; Cornwell, 625 F.2d at 688; Carey, 565 F.2d at 547; Skipworth, 508 F.2d at 601. The courts agreed that an extension of probation merely prolongs the period of probation, and prior to probation being revoked the procedures required by Morrissey and Gagnon must certainly be afforded. Several of the courts also noted that the factual finding required to extend probation was of a much lesser degree than that needed to revoke probation.
Several state courts have followed the logic of Skipworth and its progeny in refusing to recognize a due process right to a hearing for probation extension or modification. State v. Smith, 255 Conn. 830, 838-39, 769 A.2d 698 (2001); State v. Hardwick, 144 Wis.2d 54, 59, 422 N.W. 2d 922 (Wis. App. 1988); State v. Campbell, 95 Wash. 2d 954, 958, 632 P.2d 517 (1981); Ockel v. Riley, 541 S.W.2d 535, 543 (Mo. 1976); cf. Edwards v. State, 216 Ga. App. 740, 741, 456 S.E.2d 213 (1995) (ex parte modification permitted by statute and upheld by court); People v. Britt, 202 Mich. App. 714, 716-17, 509 N.W.2d 914 (1993) (found ex parte modification not violative of due process); State v. Zeiszler, 19 Ohio App. 3d 138, 139-40, 483 N.E.2d 493 (1984) (probation extension upheld under Morrissey and Gagnon but no other federal decisions were considered); Sanchez v. State, 603 S.W.2d 869, 870 (Tex. Crim. 1980) (ex parte modification did not violate due process where defendant was made aware of changes).
A few courts have held that probationers are entitled to a hearing and counsel, but that right appears to be largely based on statute. State v. Merriweather, 34 S.W.3d 881, 885 (Tenn. Crim. App. 2000) (statute only permitted an extension as part of a probation revocation hearing and the court accordingly required the full gamut of revocation hearing procedure); Louk v. Haynes, 159 W. Va. 482, 492-93, 223 S.E.2d 780 (1976) (modification of probation was found to be a modification of sentence and code necessitated counsel at all sentence modifications); Cook v. Commonwealth, 211 Va. 290, 292-93, 176 S.E.2d 815 (1970) (required a hearing and counsel at modification of probation based on implied right in Virginia code).
Our Kansas procedures clearly pass constitutional muster. We have previously set forth the provisions of K.S.A. 21-4611(c)(5), now K.S.A. 2000 Supp. 21-4611(c)(8), that the extension of the offender’s period of supervision is based on a “modification hearing and a judicial finding of necessity.” A voluntary extension of a probation order was recently approved in State v. Powers, 29 Kan. App. 2d 166, 25 P.3d 147 (2001), although the argument there was on the effective date of the extension. While the legislature could have required counsel at proceedings where the term of supervision of probationers is extended, it is not required to do so. Adequate constitutional protection is afforded and McDonald’s contentions herein must fail.
McDonald’s argument is not persuasive that his equal protection rights were violated because with counsel he could have made an informed decision as to whether he should take an extension of probation or risk revocation. The record does not support that McDonald was faced with revocation as an alternative to his vol untary extension. At most, by statute, K.S.A. 2000 Supp. 21-4611(c)(7) and (8), he waived his right to a modification hearing and judicial finding of necessity by voluntarily agreeing to extend his probation. His citation to State v. Duke, 10 Kan. App. 2d 392, 699 P.2d 576 (1985), also does not support this contention. Duke holds that a trial court may not automatically revoke probation for failure to pay fines and make restitution without considering the reasons for such violation. McDonald’s inability to fully pay the ordered restitution was never a factor in his ultimate probation revocation.
We hold a probationer has no constitutional right to counsel when the term of probation is lawfully extended as statutorily allowed.
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Patricia Lee Leitner, from her conviction for first-degree murder of her ex-husband, Michael. She was sentenced to fife imprisonment.
Leitner raises four issues on appeal. She contends the trial court abused its discretion when it allowed the State to cross-examine her concerning her involvement with a pagan religion. She also contends the trial court abused its discretion when it allowed a Kansas Bureau of Investigation (KBI) agent to testify that in his opinion a State witness was not involved in the murder. She claims she was denied due process and a fair trial because of prosecutorial misconduct and that the trial court abused its discretion when it limited cross-examination of a State witness to the scope of direct examination.
Leitner met Michael when she was 17 years of age and he was 24 years of age. A common-law marriage followed and two sons were bom to the union. Leitner testified that it was an abusive marriage and that Michael frequently physically abused her. Leitner testified that she tried to end her relationship with Michael by poisoning him in February 1998. She stated that she poisoned him because she wanted the beatings to stop. She told the jury that because Michael was threatening her with guns, she “knew that one of these times that he was going to do it.” Leitner admitted the first time she tried to poison Michael, she crushed up D-Con rat poison and put about a teaspoon of it in a pot of coffee. Michael drank the coffee but did not even become ill. Leitner stated that the second time she attempted to kill him, she sliced wild mushrooms into an omelette, thinking they were poisonous. The mushrooms did not affect him.
In July 1998, Leitner obtained an emergency divorce from Michael. Leitner was awarded the couple’s residence and the proceeds of a sales contract of a tavern they had sold on contract along with other property. Custody of their two sons was given jointly to Leitner and Michael.
Less than 2 months later, Michael filed a motion to set aside the property settlement agreement, claiming that at the time he signed it, he was in “no condition to fully understand and appreciate [its] significance.”
Leitner’s babysitter, Honee Larcom, testified that Michael had continued to call Leitner following the divorce to ask about the boys. She continued to babysit for Leitner almost every weekend following the divorce. Larcom testified that during conversations with Leitner in late August or early September 1998, Leitner complained about Michael, saying he would not keep a job, he did not make enough money, and that if he would just die, her family would be better off. Larcom testified that Leitner told her:
“ ‘You know, if he would just die my family would be so much better off. I wish he would just die because he has [a] life insurance policy, we got it when we bought the house, and I could get like $70,000,’ and the boys, they’d be set she said ‘cause they could get social security. They could get like $700 a month till they’re 18.”
Larcom also testified that she and Leitner talked about Leitner’s income. Larcom knew Leitner received $500 a month in payments from the sale of a tavern that she and Michael sold. Leitner told her there were only two more payments remaining on the contract, which worried Leitner. Larcom said that Leitner was going to apply at the Kansas State Department of Social and Rehabilitation Services for food stamps and talked about getting a job. Leitner asked Larcom whether she could babysit while Leitner worked.
Tammy Warner, Leitner’s younger sister, testified that she came to Kansas to visit Leitner in September 1998. Warner heard Leitner make threats toward Michael but believed Leitner was just angry because of the divorce. Leitner told her that “things would be better for her and the kids if Michael was dead, then they wouldn’t have to worry about it no more . . . it’d be so easy to have it done, you just make a phone call, you know, she knows people.”
Sometime on a weekday prior to Saturday, October 3, 1998, Leitner went to Chanute, Kansas, to see her insurance agent, Robert White. She paid the insurance premiums on her house, Michael’s vehicle, and her 1991 Dodge Dakota pickup truck. White gave Leitner a document concerning insurance coverage on Michael’s vehicle. Leitner told White she would be seeing Michael that weekend and would have him sign the document to take him off the policy. Michael’s visitation with their two boys was scheduled for the weekend of October 2 and 3, 1998. On Thursday, October 1, 1998, Michael telephoned to cancel his visitation with the boys. Leitner was upset because “he had been cancelling visits and it was really starting to hurt the boys.”
On Friday afternoon, Gary Hockett, Leitner’s brother, and his daughter went to Leitner’s house to ask if Leitner and his wife Pam wanted to go out that evening. Leitner called Larcom and asked her to babysit all four children at her house. After Larcom arrived, Gary, Pam, and Leitner left in separate vehicles to go to Gary’s house to get ready. At Gary’s house, Leitner told Gary and Pam that she was not going to go with them because she felt she really needed to talk with Michael.
Leitner testified that “Gary didn’t really want me to go at first originally and then he — that’s when he decided that he didn’t have a problem with me going if I took protection with me just in case.” Leitner was referring to Pam’s and Tammy Warner’s two handguns. She stated that Gary retrieved Tammy’s gun out of a green box, then Pam got hers out of her purse and handed it to Gary. Leitner testified that Gary loaded the .380 caliber and .22 caliber handguns for her while she went to the liquor store to buy him a 12-pack of beer. Earlier in the trial, Leitner reported to jurors that she owned a .22 caliber Ruger at the time of her divorce and that in September 1998, she purchased a .25 caliber semiautomatic handgun for her protection. That night, however, Leitner used Gary’s and Pam’s .380 caliber and .22 caliber handguns to shoot Michael.
Kenny Wisdom testified that he worked with Michael at the Wyncroft Hill Apartments in Olathe on Friday, October 2, 1998. Around 7:30 p.m., Wisdom, a girl named Cindy, Michael, and Michael’s brother, Jeff, met in Jeff and Michael’s apartment. Wisdom stated that around 8 p.m., he and Michael went to the liquor store in Wisdom’s car. Prior to leaving the parking lot, a truck drove by on another road. Michael told Wisdom, “That looked like my ex-wife’s truck.” At the liquor store, Wisdom bought a case of beer, and Michael bought “a pint bottle of something.” Wisdom dropped Michael off in the parking lot of the apartment complex.
Leitner testified that when she arrived in Olathe, she drove around until she located the apartment complex where Michael worked. Leitner stated that Michael had given her his address that week. She did not know Michael’s apartment number, but her son Eric thought it was 203 or 302. After she saw Michael’s truck, Leitner said she found a place to park, got out, and knocked on a few doors. Christopher Paul answered the door of one of the apartments and later identified Leitner for investigators.
Leitner testified that when she saw Michael walking in the parking lot, she yelled his name and they spoke to one another. She told Michael she did not want to go into his apartment but pre ferred to go to a public place. She stated that Michael told her his truck was not running right so she drove to a nearby park to talk. Leitner testified that Michael asked about going to Toronto for the weekend so they could talk to their sons together and said he offered to pay for her gas. She said Michael went to his apartment to get a change of clothes. When he got back in the truck, she handed him the insurance document, and he put it inside his coat pocket.
Jeff testified that in September and October 1998, he lived with Michael in the Wyncroft Apartments in Olathe in apartment 302. When Jeff left the apartment to get groceries around 9 p.m. on October 2, 1998, Wisdom, Cindy, and Michael were there, but when he returned, they were gone. Jeff testified that he owed Michael money for back rent, so after purchasing groceries he withdrew $550 from an ATM machine at 9:24 p.m. The bills Jeff received from the ATM machine were the new-style $20 bills. Jeff went back to the apartment, and at approximately 10:30 or 11 p.m., Michael returned. Michael told Jeff that Leitner was outside in her truck and he was going to go to Toronto with her. Leitner never came into the apartment. Michael seemed surprised by the fact Leitner was there and that she was crying and very upset. Jeff stated that since Michael had reopened the divorce case and Leitner showed up all of a sudden, he did not think it was a good idea for Michael to go with her. Jeff said that Michael had a brown Ford truck in good condition and that he could have driven to Toronto. Jeff said he tried to give Michael $300 that he owed him, but he did not want to carry that much with him, so Michael gave $200 back to Jeff and took $100 in new-style $20 bills.
Leitner told jurors that after stopping at an Ottawa convenience store, Michael took over driving her truck. Leitner testified that Michael took a couple of swigs of butter shots, a kind of liquor, on the trip to Toronto. She said Michael’s demeanor changed on the trip to Toronto and he hit her in the stomach with the back of his fist. She testified that he stopped the truck on a road and got out to refieve himself, then sat on the bumper and lit a cigarette. She said she got out of the truck, relieved herself, then retrieved her cigarettes and gun. Leitner was wearing a black duster and had placed a gun in each pocket. She lit a cigarette and went back to the rear bumper to smoke it. Leitner testified Michael hit her “upside the head” and then he started choking her as she was standing at the side of the truck. She said he put his hands around her neck, commented that all he had to do was to squeeze harder, and then started squeezing her Adam’s apple. Leitner said she kicked him with both her legs, then pulled die guns from her pocket, and shot him as he was getting up.
At trial, Gary testified as a State’s witness as a result of a plea agreement. Gary stated that he left the .380 caliber and .22 caliber handguns at Leitner’s house after target shooting on September 4, 1998, and had not given them to Leitner on Friday, October 2, 1998, as she claimed. Gary stated that on Friday, Leitner came over to his house, as they were getting ready to go out, and told him she had changed her mind and was going to Olathe to try to work things out with Michael. Gary said, “She was upset and everything about the way things had been going with her and Mike and she was wanting to resolve it.” Gary testified that Leitner left around 7 p.m. He and Pam went to Iola to Wal-Mart, ate supper at the Greenery Club, and then went to the Road Island Club on Highway 75 south of Burlington until 2 a.m. Gary stated that when they returned to their house in Toronto between 5 and 5:30 a.m., Leitner’s pickup was parked outside the house and Leitner was asleep on their couch.
Gary woke Leitner up and asked her what was going on, and she said she used both of them. He asked what she meant, and she said, “I used both guns. . . . I shot Mike.” He asked her why she used his guns, and she replied, “Because they was there ... I wanted to make sure they was — it was a big enough gun to stop him.” Gary testified that Leitner said she tried to shoot him earlier on the way to Toronto when she had pulled into a roadside park, but someone had pulled up, so she put the gun back in her coat and got back in the truck. Leitner told Gary that she had shot Michael later somewhere outside Gridley, first using the .380. After he fell to the ground his arm moved, so she took the .22 and shot him twice in the side of the temple.
Pam also testified at trial as a result of a plea agreement. She talked about many statements Leitner had made, both before and after she killed Michael. Pam said that Leitner loved her house and had said she would do anything to keep it. Pam reported that on Friday, October 2, 1998, the two guns used in the homicide were at Leitner’s house because that is where she and Gary left them after some target practice at Leitner’s in September. She stated that Leitner reported that she was the one who had asked Michael to come to Toronto to work things out. Leitner also told her that Michael told Jeff that he was going to spend the weekend with another woman in Olathe. Pam testified that Leitner said she turned off the highway to Gridley onto back roads and drove until she could not see any houses. Leitner told Pam she walked up behind Michael and shot him in the head once, then twice again in the temple as he lay on the ground to make sure he was dead. Then she picked up a few of the shell casings and drove away. Pam further testified that Leitner threatened her more than once by talking about the big gray hole in the back of Michael’s head and making the statement, “Now you see what happens to people who cross me.” Pam also said that on several occasions Leitner told her she was such a good actress that she could plead temporary insanity or spousal abuse and get anybody to believe it.
Gary testified that Leitner told him she took Michael’s wallet so the authorities would not be able to identify him as quickly. He also said that Leitner was not worried about her fingerprints on the guns because she had worn gloves. Gary initially agreed to help his sister and wiped down the inside of her truck for fingerprints and buried the guns, wallet, and ammunition. Gary said they only wiped down the passenger side of the truck because that was where Leitner said Michael sat. In addition, Gary testified that on Saturday morning, when he, Pam, and Leitner returned to Leitner’s house, Leitner paid Larcom for babysitting. Leitner made the statement, “We’ll just let somebody else pay for it this time,” and handed Larcom some cash. Gary thought the cash was from Michael’s wallet.
Larcom testified that on Saturday, October 3, 1998, Leitner, Pam, and Gary came to Leitner’s house around 6:30 or 7 a.m. Leitner paid Larcom $60 for babysitting, using three new-style $20 bills.
Gary stated that he continued to cover up for his little sister until October 20 or 21, 1998. Around October 7, Gary asked Leitner why she shot Michael. Gary testified that she indicated it was for the boys’ sake; not just for their mental and physical well-being, but also for financial well-being. Gary stated, “She didn’t think Mike needed to be around the boys at all and she didn’t — she knew that if something had to happen to Mike that things would be took care of. . . . The boys would get social security, the house would be paid for, basically that type of deal.” Gary further told the jurors that his sister suggested he ought to take “the rap” because he could beat it. He did not like that idea.
A little after 8:30 a.m. that Saturday morning, October 3, 1998, Tom Kraft found Michael’s body lying on Iris Road just north of the Woodson-Coffey County fine. Kraft summoned police to the scene. Gene Morrow, a detective with the Coffey County Sheriff s Department, was one of the officers who responded to the call. Morrow testified he saw no signs that there might have been a struggle at the scene. In addition, he said the only footprints were Michael’s. Although police found no wallet on the body, they were able to tentatively identify Michael because of the insurance papers they found inside his jacket pocket. Morrow stated that they were later able to locate Michael’s suitcase in a ditch 1 to 2 miles south and east of the crime scene. In addition, Morrow testified that on October 22, 1998, Gary came to him and confessed that he had conspired with Leitner to cover up the crime and conceal evidence.
Dr. Erik Mitchell, a forensic pathologist who serves as coroner for several counties in Kansas, gave expert testimony at trial. Mitchell indicated that Michael had three gunshot wounds to the head. He testified that the wound on the back of Michael’s head was a contact wound where a gun was pressed up against his head and fired. Mitchell testified he believed the most likely sequence of events was that the gunshot to the back of the head was first, followed by two shots to the temple after Michael dropped to the ground.
On October 22, 1998, Leitner was arrested and charged with the premeditated first-degree murder of Michael. Although Leitner initially indicated that she would rely on the battered woman syndrome as a defense, she later decided not to do so. After a 7-day jury trial, a jury convicted Leitner of first-degree murder on August 31, 1999. On October 6, 1999, Judge Phillip M. Fromme imposed a sentence of life imprisonment, with the eligibility of parole after serving 25 years of confinement.
I. CROSS-EXAMINATION CONCERNING WICCA, A PAGAN RELIGION
The first issue for determination is whether the trial court committed an abuse of discretion when it allowed into evidence the State’s cross-examination of Leitner concerning her involvement with Wicca, a pagan religion, sometimes referred to as witchcraft.
“The admission and exclusion of evidence lies within the sound discretion of the trial court.” State v. Lumley, 266 Kan. 939, 953, 976 P.2d 486 (1999). “ ‘ “[I]t is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion.” ’ [Citation omitted]” 266 Kan. at 950. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
On February 17, 1999, Leitner filed a pretrial motion in limine asking the trial court to prohibit counsel and witnesses for the State from, among other things, “making reference to, eliciting testimony or offering evidence of . . . [t]he alleged practice of ‘witchcraft’ by the accused.” The trial court heard oral arguments on pretrial motions on March 3, 1999. The State offered no objection to an order excluding such evidence. The court granted Leitner’s motion in limine in its entirety.
On the third day of the jury trial, the court heard the arguments of counsel on several issues outside the presence of the jury. The judge stated:
“[Wjitli regard to the issue of witchcraft, that the court lias determined . . . after reviewing K.S.A. 60-445 the court has discretion to exclude certain evidence, and as far as my knowledge of the case ... I question whether the State’s able to show how her involvement with witchcraft or membership in any organization, religious beliefs, are related to the crime charged, and without a showing of that I think it’s highly prejudicial for that material to be before the jury, and we did have a motion in limine on that, and I think I’ll hold you to that. . . . I’ll forewarn you that I do find this fairly highly prejudicial potentially to the jury and very little probative value as far as showing how even her subsequent acts might relate to the crime . . . .”
The State agreed to instruct its witnesses of the court’s ruling. The trial court, noting that it was possible that defense witnesses could “open the door” to this subject, stated “if they do we’ll deal with it at that time.”
Later, during a recess in the trial outside the hearing of the jury, the State again raised the topic of questioning witness Pam Hockett regarding Leitner’s witchcraft activities following Michael’s murder. The State proffered to the court that Pam would testify
“that defendant was using a black caldron, she cooked flowers in there, seeds, and did chants of some sort, and she slept with some type of tree branch, and I think it was oak, over her bed, and diese were all particular to die defendant’s beliefs in what I’m going to call witchcraft but I think she calls Wicca. . . . [T]he defendant did these behaviors as protection spells ... to be protection from die KBI . . . discovering what she did to her ex-husband.”
Again, the court ordered the State not to “get into that area” because of the high prejudicial value of the testimony. The trial court noted that this evidence might possibly show some evidence of consciousness of guilt but determined that there was other evidence of that nature available.
On Friday, August 27, 1999, the defense called Leitner to the stand. She testified about the events that occurred the night of Michael’s death, their marital history, and about many specific instances of physical abuse Michael inflicted on her. She testified that after a certain time period, Michael stopped hitting her in the face but would hit her in places where her clothes would cover the injuries. She stated that did not seek medical attention after these instances because Michael was her nurse afterward and twice gave her stitches using “fishing line and a mattress needle.” Leitner testified that she intentionally shot Michael three times after he hit her in the stomach and choked her.
Following the direct examination of Leitner during a hearing outside the presence of the jury, the prosecutor again broached the topic of her involvement with witchcraft. The prosecutor asserted that “[t]he defendant in her testimony has opened the door to several items . . . when she testified about the nature of the relationship with the victim, Michael Leitner” and stated that witnesses had alleged that “the reasons Michael hit her on a couple of occasions was that the defendant was involved in witchcraft and he didn’t like it, being the reason for possibly Michael hitting her.” The central concern of the prosecutor regarding Leitner’s testimony was that she had misled the jury by making direct misstatements about her sexual experience with men prior to and during her marriage to Michael, about reporting to others that he abused her, and about the lack of provocation on her part when Michael hit her. Counsel for Leitner argued that as to "the affairs or the witchcraft, nothing Patricia testified to touched on those issues .... It’s not relevant. It’s highly prejudicial.” The prosecutor countered by stating, “Well, oh, he wants her to be able to testify, your Honor, that all this abuse occurred, but we’re not allowed to get into why it may have occurred and that it may he her fault that she was involved in things that Michael didn’t want her to.” (Emphasis added.)
After a brief discussion of another issue, the court stated: “I’m concerned about the witchcraft. Do you have witnesses . . . that can testify that beatings were a result of her involvement ... in witchcraft?” The State made the proffer that testimony of Leitner’s sister, Tammy Warner, would be that Leitner only told her of two occasions of abuse, one of which was when Michael found out Leitner had attended a pagan ritual involving witchcraft and the other when he learned she was dating a man involved in it. Counsel for Leitner argued that the prosecutor seemed to be arguing “that the witchcraft and the affair justified the beatings.” The trial court acknowledged that “I don’t know that there’s any justification for beatings.” The court ruled, however, that despite efforts to keep the issues of witchcraft, prostitution, and fires from the jury, Leitner’s testimony appeared to open the door. Therefore, the court decided to allow the State to cross-examine Leitner about her for mer involvement with prostitution, witchcraft, and extramarital affairs. Leitner’s attorney requested a standing objection to any of this evidence coming in. The trial court required the attorney to make specific objection or to just say objection.
The State proceeded to cross-examine Leitner concerning her testimony of Michael’s past physical abuse. Defense counsel objected on the grounds of relevancy, but the court allowed the questioning to continue. Leitner denied that she had been hit by Michael after he had caught her having sex with another man.
Next, the State brought up the subject of witchcraft. Following another objection by Leitner’s counsel, the court allowed the State to continue. The State repeated the question, asking Leitner whether she “got into an argument with Mike because [she] had entered into witchcraft and [she] had gone to a pagan ritual ceremony ....’’ Leitner denied it, stating that “none of the times that I got beat up was it ever or ever had anything to do with pagan religion.”
Following that exchange, the trial record reads:
“Q. You’re not denying that you were involved in that though?
“A. No, I am not.
“Q. You in fact were involved in that?
“A. Wicca.
“[Counsel for Leitner]: Judge, this is beyond the scope. I think the State has exceeded the boundaries.
“THE COURT: Well, I don’t know that we need to go further at this point.
“[The State]: I just want to make sure she wasn’t denying she was involved in that.
“[Leitner]: No.”
At trial, the prosecutor argued he should be able to question Leitner about witchcraft to clarify for the jury why the physical abuse may have occurred due to her fault because she was involved in things that Michael did not like. On appeal, the State contends that, in an effort to counter Leitner’s testimony that Michael indiscriminately physically abused her, it “sought to present evidence that he disliked her practice of witchcraft which caused marital strife.” The State’s asserted purpose was to impeach Leitner and “to put into context Michael’s alleged action against the defendant on die specific instance testified to by the defendant.” Further, the State argues that the trial court used the balancing test provided in K.S.A. 60-445 and properly found that the value of the evidence was not outweighed by the risk of unfair prejudice.
Conversely, Leitner argues that “[t]he use of the word ‘witch’ to evoke terror in the jury in a contemporary criminal trial echoes the cries of ‘communist’ in the McCarthyist 1950’s or ‘witch’ in the days of Salem.” Relying on State v. Pham, 27 Kan. App. 2d 996, 10 P.3d 780 (2000), Leitner asks for a new trial because “there was no probative value to balance against the extreme prejudice from the introduction of the witchcraft material.”
The State’s position is that the trial court did not abuse its discretion in admitting evidence of Leitner’s affiliation with witchcraft. The State contends that, during the trial, the prosecutor “not only sought to show the jury that the defendant was not completely truthful in her statements to the jury, thus impeaching her, but also to put into context Michael’s alleged action against the defendant on the specific instance testified to by the defendant.” Additionally, the State argues that if, arguendo, the trial court did commit error by admitting this evidence, it constituted harmless error.
A. Abuse of discretion.
Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f); State v. Galloway, 268 Kan. 682, 686, 1 P.3d 844 (2000); Divine v. Groshong, 235 Kan. 127, 130, 679 P.2d 700 (1984). K.S.A. 60-401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.”
Leitner urges this court to consider several cases when determining whether the trial court abused its discretion when it allowed into evidence her involvement with Wicca, or witchcraft. The first is Dawson v. Delaware, 503 U.S. 159, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992).
In that case, after a jury convicted the defendant of first-degree felony murder, a penalty hearing was conducted so that the jury could decide whether he should be sentenced to death. At the hearing, the trial court allowed the introduction of evidence of the defendant’s Aryan Brotherhood tattoos during the jury’s consid eration of aggravating and mitigating circumstances. The Dawson Court, extending the protection of the First Amendment to evidence introduced at a sentencing hearing, concluded:
“[T]lie Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment.
“[W]e nevertheless agree [that]. . . the receipt into evidence . . . regarding his membership in the Aryan Brotherhood was constitutional error.” Dawson, 503 U.S. at 165.
The Dawson Court reasoned that even if the Aryan Brotherhood espoused racist beliefs, those beliefs had no relevance to the defendant’s sentencing. 503 U.S. at 166. The Dawson Court concluded that the defendant’s “First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson’s abstract beliefs. Cf. Texas v. Johnson, 491 U.S. 397, 414 (1989).” 503 U.S. at 167.
Next, Leitner cites the Nevada case of Flanagan v. State, 846 P.2d 1053 (Nev. 1993). In Flanagan, the prosecution presented details of the defendants’ belief in the occult and membership in a coven to establish their bad character at a sentencing hearing. The Nevada Supreme Court affirmed the convictions, but the United States Supreme Court vacated the sentences in light of Dawson. On remand, the Flanagan court reviewed the rule set forth in Dawson, stating:
“The United States Supreme Court stated that evidence of constitutionallyprotected associations could be admissible to show that a defendant poses a future danger to society. [Citation omitted.] However, the mere fact that a defendant belongs to a group holding racist or other antisocial beliefs is insufficient. To be admissible, the constitutionally suspect evidence must somehow be ‘tied’ to the defendant’s crime. [Citation omitted.]
“From Dawson, we derive die following rule: Evidence of a constitutionally protected activity is admissible only if it is used for something more dian general character evidence.” 846 P.2d at 1055-56.
Leitner further cites the case of Unites States v. Abel, 469 U.S. 45, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984). In Abel, the United States Supreme Court held that under the common law of evi dence, the admission of evidence relating to a witness’ membership in an organization may be relevant to show witness bias, i.e., that his or her testimony was slanted or perhaps fabricated. 469 U.S. at 52-53.
Even though this court has not encountered a previous murder trial where evidence of a defendant’s association with witchcraft was admitted into evidence, it has considered cases concerning the admission of evidence of gang affiliation. In State v. Sims, 265 Kan. 166, Syl. ¶ 5, 960 P.2d 1271 (1998), this court stated:
“Evidence of gang affiliation indicating a defendant is a member of a gang or is involved in gang-related activity is admissible to show a motive for an otherwise inexplicable act. Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.”
In another recent Kansas case involving evidence of a person’s association with a gang, this court reviewed the Dawson case and stated:
“ ‘Dawson does not stand for the position that such evidence must always be excluded. In fact, United States v. Abel [citation omitted] held that evidence of gang membership was probative of witness bias, and its probative value outweighed the potential for prejudice. Dawson does not overrule or limit Abel; we read Dawson as applying to the sentencing fact scenario.’ ” State v. Roberts, 261 Kan. 320, 325, 931 P.2d 683 (1997) (quoting State v. Tran, 252 Kan. 494, 503-04, 847 P.2d 680 [1993]).
Thus, although there is no per se barrier to the introduction of evidence of a person’s membership or participation in a religious group or association, to be admissible such evidence should be related to the commission of the crime charged or should be used to show a person’s possible bias or motive. See Dawson, 503 U.S. at 168; Abel, 469 U.S. at 52-53; Sims, 265 Kan. 166, Syl. ¶ 5; Roberts, 261 Kan. 320, Syl. ¶ 1.
1. Relevancy, Impeachment.
“The determination of relevancy is a matter of logic and experience, not a matter of law. [Citations omitted.]” ’ ” State v. Gardner, 264 Kan. 95, 104, 955 P.2d 1199 (1998). To establish relevancy to the fact of the crimes charged, this court has stated there must be “some natural or logical connection between [the witness’] testimony and the inference or result [the witness’] tes timony is designed to establish.” State v. Donesay, 265 Kan. 60, 85, 959 P.2d 862 (1998). Here, the evidence showing that Leitner participated in Wicca bears no relevance to the crimes charged against her. The record contains no hint or innuendo that her abstract beliefs had any connection to Leitner killing Michael.
Further, the State’s assertions that it sought to use this evidence to put Michael’s actions into context or to impeach Leitner’s testimony about the indiscriminate nature of Michael’s abuse are ludicrous. To believe these assertions, one must first believe that a justification exists for beating one’s spouse. The State fails to present a valid justification for its argument that Leitner’s testimony describing Michael’s physical abuse “opened the door” to collateral evidence of Leitner’s association with Wicca.
2. Probative value versus prejudicial effect.
The State further asserts on appeal that the evidence of Leitner’s involvement with witchcraft was more probative than prejudicial. K.S.A. 60-445 states:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered."
While K.S.A. 60-445 only refers to the element of surprise, as a rule of necessity the trial judge may exclude any evidence which may unfairly prejudice the jury against the defendant. See State v. Davis, 213 Kan. 54, 57, 515 P.2d 802 (1973). Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. See Curry v. Klein, 251 Kan. 670, 675, 840 P.2d 443 (1992).
On cross-examination, the prosecutor succeeded in getting Leitner to admit that she was involved in witchcraft and attended at least one pagan ceremony. As noted, however, the evidence failed to show Leitner’s bias or motivation for killing Michael and was not relevant to the commission of the crime charged. Thus, it had no probative value.
As to the possible prejudice generated, the idea of witchcraft has generated terror and contempt throughout American history. Be fore this country was formed, the first laws of the Massachusetts Bay Colony fisted idolatry and witchcraft among capital offenses. See Furman v. Georgia, 408 U.S. 238, 335, 33 L. Ed. 2d. 346, 92 S. Ct. 2726 (1972) (Marshall, J., concurring).
Even in our culture today, Satanic imagery associated with witchcraft continues. For example, in Altman v. Bedford Cent. School Dist., 245 F.3d 49 (2d Cir. 2001), parents brought suit against a school district alleging that a card game played by extracurricular clubs depicting goblins, zombies, and vampires glorified the worship of Satan and the practice of witchcraft. In another recent case, two young children were taken from their parents by social workers for 2Va months after the mother’s sister, who suffered from a severe psychiatric disorder, told tales of Satanic worship and falsely reported that the father might sacrifice his son to Satan at the fall equinox ritual. Wallis by and through Wallis v. Spencer, 193 F.3d 1054 (9th Cir. 1999). It seems evident that our culture associates witchcraft with Satanic worship and other evil practices. Any mention of a defendant’s involvement with witchcraft is highly prejudicial.
Therefore, because the evidence of Leitner’s practice of witchcraft was more prejudicial than probative, had no direct relevance to the crime charged, and did not serve to impeach Leitner, no reasonable person would take the view adopted by the trial court in admitting evidence of Leitner’s participation in witchcraft. The decision to admit this evidence at trial was in error.
B. Constitutional Error, Harmless Error.
“An appellate court’s review of tire trial court’s admission of evidence is a two-step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if tire evidence was improperly admitted, it must determine whether to apply tire harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.” State v. Smallwood, 264 Kan. 69, 80-81, 955 P.2d 1209 (1998).
“Review of the admission or the exclusion of evidence is usually governed by die harmless error rule. K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence by die court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to die court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in die proceeding which does not affect the substantial rights of tire parties. State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 (1994).
“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 die error had little, if any, likelihood of having changed the result of the trial. State v. McClanahan, 259 Kan. 86, Syl. ¶ 4, 910 P.2d 193 (1996).” State v. Clark, 261 Kan. 460, 469, 931 P.2d 664 (1997).
Recently, in the case of Pham, the Kansas Court of Appeals considered the erroneous admission of the defendant’s gang affiliation during his trial on nongang-related crimes. In that case, the Court of Appeals found that where inflammatory evidence has no probative value of significant magnitude to counterbalance its prejudicial effect, its introduction becomes grossly and unfairly prejudicial. 27 Kan. App. 2d at 1002. There, because the evidence against the defendant was “far from overwhelming,” the court held that cumulative trial errors merited reversal and a new trial. 27 Kan. App. 2d at 1006.
We must consider whether the admission of evidence that Leitner was involved in witchcraft constituted reversible error. In this particular case, overwhelming evidence was presented concerning Leitner’s steadfast desire to kill Michael. Moreover, ample evidence illustrated Leitner’s belief that she and her boys would be better off financially if Michael were dead. At trial, Leitner did not dispute that she intentionally shot Michael. The issue was whether she acted in self-defense or with premeditation. Leitner’s intent was a key factor for the jury to decide.
Leitner testified that she made two previous attempts to kill Michael by poisoning him. She expressed to her brother, her sister, and her babysitter a continuing desire to be rid of Michael permanently for the sake of her family. Although she owned two guns of her own, she took two guns belonging to others with her the night she shot Michael. She wore gloves to hide her fingerprints. She told her sister-in-law that she asked Michael to come to Toronto with her to work things out. Leitner also told her that she walked up behind Michael and shot him in the head, then twice again in the temple as he laid on the ground to make sure he was dead. The expert opinion of Dr. Mitchell supports Pam’s testimony. Leitner had stopped earlier at a rest stop for the purpose of killing Michael by shooting him, which makes premeditation clear. Here, overwhelming evidence contradicts Leitner’s story of self-defense on the night of the murder.
While in a close case, the admission of evidence of a defendant’s participation in Wicca might serve to inflame a jury to wrongfully convict a defendant and result in a reversal on appeal, it is clear in this case that the jury heard ample evidence to show that Leitner murdered her husband with premeditation. Therefore, based on the particular facts of this case alone, we decline to set aside the jury verdict based on the erroneous admission of witchcraft evidence.
II. AGENT HALVORSEN’S TESTIMONY CONCERNING THE NONINVOLVEMENT OF GARY HOCKETT
On appeal, Leitner asserts that the trial court erred when it allowed KBI agent Bill Halvorsen to testify that Gary Hockett “was telling the truth.” Halvorsen is a special agent with the KBI, assigned to the general felony investigations unit. Halvorsen assisted in the investigation of Michael’s homicide. Leitner states that Halvorsen served “as a sort of expert,” noting that he was permitted to observe the testimony of other witnesses throughout the trial prior to his testimony.
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 evidence. Necessity is the basis for the admission of expert testimony, arising out of the particular circumstances of the case. Expert conclusions or opinions are not necessary if the normal experience and qualifications of jurors permit them to draw proper conclusions from the given facts and circumstances. Smallwood, 264 Kan. at 80. “An expert’s opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. An expert witness may not pass on the weight or credibility of evidence.” State v. Rice, 261 Kan. 567, Syl. ¶ 10, 932 P.2d 981 (1997). An expert may testify and give his or her opinion concerning the ultimate issue of the case; however, such testimony is admissible only if it actually assists the jury. State v. Gaines, 260 Kan. 752, 757, 926 P.2d 641 (1996).
“No error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict 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 die substantial rights of die parties.” Smallwood, 264 Kan. at 80 (citing K.S.A. 60-261; State v. Morris, 255 Kan. 964, Syl. ¶ 6, 880 P.2d 1244 [1994]).
In particular, Leitner objects to the following testimony:
“Q. At some point after Gary Hockett’s interview that day to today’s date were you ever able to positively confirm that Gary Hockett was not involved prior or during the murder of Michael Leitner?
“MR. CLARK: I guess I’m going to object, your Honor. That’s one of the ultimate issues that the juiy’s going to have to decide, and I don’t think it’s proper for diis witness to render an opinion as to credibility of witnesses. That’s the ultimate issue.
“THE COURT: Not in this trial. You may repeat die question if you wish. You can answer.
“Q. Were you ever able after the interview of Gaiy Hockett on October 22nd, die five or six hour interview, ever able to absolutely positively confirm diat Gary Hockett was not involved prior to or during the murder of Michael Leitner?
“A. Yes, I was.”
At trial in her opening statement, Leitner’s theory of defense was that she intentionally shot Michael in self-defense. Upon direct examination, Leitner first stated that Gary encouraged her to take the guns with her and even loaded them for her while she went to the liquor store. Later, during cross-examination, Leitner testified that Gary did not know what she was going to do with the guns or that she was going to commit a crime on the night of the murder. In closing argument, defense counsel argued that Gary was not telling the truth when he testified that he did not give Leitner the two guns that evening. In addition, counsel for Leitner asserted that Pam and Gary lied in order to keep Gary from being prosecuted for his involvement in Michael’s murder. The inference de fense counsel asked the juiy to draw was that if Pam and Gary lied, Leitner’s story of self-defense would be more probable.
Leitner’s theory that the trial court’s admission of Halvorsen’s testimony was in error because it touched on the ultimate issue of premeditation fails for two reasons. First, when considering whether Leitner committed the murder with premeditation, it makes no difference whether jurors chose to believe either Gaiy or Leitner. Even if Gary gave Leitner two guns for her protection that Friday night, as Leitner testified, reasonable jurors could conclude that she formed the requisite premeditation during her 2-hour drive to Olathe. “ ‘Premeditation under the law does not require any specific time frame.’ [Citation omitted.]” State v. Moncla, 262 Kan. 58, 72, 936 P.2d 727 (1997). Furthermore, a jury “ ‘has a right to infer premeditation from the established circumstances of the case provided the inference is a reasonable one.’ ” State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 (2000). Thus, the fact that Gary’s story varied from Leitner’s makes no difference as to the issue of premeditation.
Second, the State’s inquiry did not concern Gary’s credibility during the trial; rather the question was designed to elicit a response from Halvorsen as to whether his investigation confirmed the truth of Gary’s story of noninvolvement prior to or during the murder. This information is helpful to a jury, and, thus, the trial court did not abuse its discretion when it allowed Halvorsen to testify. Moreover, Leitner’s own testimony confirmed that Gary was not involved prior to or during the murder. Thus, Leitner suffered no prejudice from Halvorsen’s testimony, and her claim of error is without merit.
III. ALLEGED PROSECUTORIAL MISCONDUCT
The next issue for consideration is whether Leitner was denied due process and a fair trial because of alleged persistent prosecutorial misconduct. According to Leitner, the prosecutor committed misconduct by (1) deliberately injecting evidence of her involvement with witchcraft; (2) making argumentative remarks about holding the gun; and (3) conducting an improper coerced reenactment of the shooting during cross-examination. In addition, Leitner contends that these multiple instances of prosecutorial misconduct substantially prejudiced her right to a fair trial.
“Not every trial error or infirmity which might call for application of an appellate court’s supervisory powers correspondingly constitutes a failure to observe the fundamental fairness that is essential to the very concept of justice.” State v. Ruff, 252 Kan. 625, 631, 847 P.2d 1258 (1993). “Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant’s constitutional right to a fair trial.” State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000) (citing State v. Sperry, 267 Kan. 287, 308, 978 P.2d 933 [1999]).
“ ‘Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.’ ” State v. Lumley, 266 Kan. 939, 965, 976 P.2d 486 (1999) (citing United States v. Grunberger, 431 F.2d 1062 [2d Cir. 1970]). This court analyzes the prosecutor’s conduct during cross-examination using a standard similar to that used when reviewing remarks made in closing argument. “Specifically, ‘[i]n deciding the question of whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.’ ” 266 Kan. at 959.
A. Witchcraft evidence.
In State v. Lockhart, 24 Kan. App. 2d 488, 947 P.2d 461 (1997), the court lists the following factors for consideration when determining whether prosecutorial misconduct was prejudicial:
“ ‘ “When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that die misconduct would likely have little weight in die minds of the jurors? [Citations omitted.]” ' ” 24 Kan. App. 2d at 492.
As discussed previously, the admission of the witchcraft evidence constituted error; however, even though the prosecutor should have avoided the introduction of irrelevant evidence of witchcraft, the prosecutor’s remark following the objection does not demon strate ill will or gross misconduct. Looking closely at the record, the prosecutor was not asking Leitner a question following the trial court’s admonition but rather was responding to the court. Moreover, Leitner’s response following the prosecutor’s remark was not required of her.
This particular remark by the prosecutor, even if erroneous, had little or no likelihood of changing the result of the trial due to the overwhelming evidence against Leitner. When viewed in the light of the trial record as a whole, the complained-of conduct does not mandate a reversal.
B. Prosecutor’s remarks about holding the gun.
Next, we consider whether the prosecutor’s remarks to Leitner during cross-examination concerning her knowledge of how to hold a gun were so prejudicial as to require reversal. An examination of the trial record reveals the following exchange:
“Q. Was die .380 — were you still pointing it?
“A. I don’t remember.
“Q. Well, take the .22 then and show the jury how you were standing when you fired die .22 and how you were pointing it. Go ahead, pick it up. Go ahead and stand up, do the same thing, turn around, face the wall so it doesn’t point at anybody.
“A. What do you want me to do with it?
• “Q. Demonstrate how you shot the .22, what you were doing widi the gun. Hold it like you fired it. Ma’am, you know how to hold the gun.
“A. (Witness complies with request.)”
Here, Leitner asserts that the most egregious remark occurred when the prosecutor stated, “Hold it like you fired it. Ma’am, you know how to hold the gun.” Again, Leitner contends that this remark was motivated by nothing but ill will. Leitner compares this exchange with remarks made by the prosecutor in State v. Gray, 25 Kan. App. 2d 83, 958 P.2d 37 (1998).
The comparison is unconvincing. In Gray, the defendant denied ownership of drug paraphernalia, including spoons and syringes, during cross-examination. The defendant further denied using intravenous drugs since a month and a half before a search warrant was executed. In response, the prosecutor told the defendant to show his arms. When the defendant complied, his arms apparently revealed no evidence of intravenous drug use, and the prosecutor stated to the jury: “Sure saw a lot more on the day we arrested you.” 25 Kan. App. 2d at 85. There, the prosecutors remarks, in essence, interjected a new, prejudicial assertion of unproven fact to the jury, i.e., that there were needle marks on the defendant’s arms on the day of his arrest. Here, however, the prosecutor did not interject any new assertions of unproven fact. Jurors knew that Leitner had fired the gun, because she previously admitted that she fired the weapon into Michael’s head. In addition, jurors knew that Leitner knew how to hold a gun because Gary Hockett testified that on September 4, 1998, he and Leitner had engaged in target practice with pistols behind the shop on her property.
The record provides no evidence that the prosecutor’s remark was motivated by ill will. Viewed in the light of the entire trial record, the complained-of conduct does not require a reversal.
C. Reenactment of the shooting on cross-examination.
Next, we consider whether the prosecutor’s reenactment of the shooting substantially prejudiced Leitner. On appeal, Leitner argues that the reenactment during cross-examination was improper because (1) it was outside the scope of direct examination; (2) it constituted a form of compelled testimony in violation of the Fifth Amendment privilege against self-incrimination; and (3) because Halvorsen’s actions in playing the role of Michael misstated the evidence.
1. Reenactment on cross does not exceed the scope of direct examination.
At trial, counsel for Leitner objected once during the demonstration, but it was an objection on the basis that the question had been answered several times, not an objection to the demonstration itself. “The erroneous admission of evidence may not be raised on appeal absent a timely objection to the evidence, so stated as to make clear the specific ground of the objection. K.S.A. 60-404.” State v. Sutton, 256 Kan. 913, 924, 889 P.2d 755 (1995).
Even if counsel for Leitner lodged an appropriate objection at trial, her argument that the reenactment exceeded the scope of direct examination would fail. Courtroom demonstrations upon cross-examination of a defendant were ruled permissible in Kansas courts under State v. Egbert, 227 Kan. 266, 270, 606 P.2d 1022 (1980). In Egbert, this court found that asking the defendant to demonstrate to the juiy on cross-examination how he contended the victim was shot does not exceed the scope of direct examination. 227 Kan. at 270.
2. Reenactment does not violate Fifth Amendment.
We next turn to Leitner s contention that the demonstration was a form of compelled testimony. Leitner cites Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967), as authority for the proposition that the demonstration constituted an impermissible form of compelled self-incrimination.
Because the reenactment was not purely testimonial in nature, no violation of the Fifth Amendment privilege against self-incrimination occurred. The case cited by Leitner bears out this idea. In Gilbert, the Court noted that the Fifth Amendment privilege against self-incrimination only reaches “compulsion of ’an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ’compulsion which makes a suspect or accused the source of “real or physical evidence” ....’” 388 U.S. at 266 (quoting Schmerber v. California, 384 U.S. 757, 763-764, 16 L. Ed. 2d 908, 86 S. Ct. 1826 [1966]).
On this issue, Egbert is controlling. In that case, this court held that a reenactment by the defendant on cross-examination “did not violate [defendant’s] constitutional guarantee against self-incrimination.” 227 Kan. at 270. Thus, Leitner’s argument fails.
3. Reenactment did not impermissibly misstate the evidence.
Next, we consider whether the demonstration was improper because it misstated the evidence. Following the initial demonstration, a recess was held. Thereafter, the prosecutor turned to the subject of the reenactment and asked Leitner questions concerning where she stepped when she shot Michael for the second time. After a brief exchange, Leitner’s counsel objected, stating: “State’s already gone over this. It’s been asked and answered.” The court responded: “Well I think some clarification’s in line.” At that point, counsel for Leitner objected on the ground that the demonstration misstated the evidence because “during the representation, Agent Halvorsen indicated that he fell forward. The evidence is that Mr. Leitner actually fell backwards . . . The trial court overruled the objection, stating: “Well, I understood the demonstration was to give her an opportunity to show exactly where he was and what happened, and if she allowed things to be out of place then you’ll have to clarify that on redirect I guess.”
Leitner contends that misstating the facts in evidence is clearly improper under Pabst, 268 Kan. at 507. Pabst involved a prosecutor who gave his personal opinion of the defendant’s credibility to the jury during closing argument. While it is true that a prosecutor cannot interject his opinion of the defendant’s veracity, Leitner’s argument on appeal fails to convince us that the courtroom demonstration in this case constituted a misstatement of the evidence by the prosecutor.
Finally, we conclude that neither the prosecutor’s conduct nor the reenactment during cross-examination substantially prejudiced Leitner’s right to a fair trial.
IV. LIMITATION OF CROSS-EXAMINATION OF THE STATE’S WITNESSES TO THE SCOPE OF DIRECT EXAMINATION
The last issue for consideration is Leitner’s contention that the trial court denied her fundamental right to present a defense when it placed limitations on her ability to introduce evidence regarding her discordant marital relationship and specific instances of past physical abuse. More specifically, Leitner complains that the court erred when it ruled she could elicit evidence of specific instances of Michael’s physical abuse only in her case in chief, rather than being allowed to elicit such information from the State’s witnesses, Gary Hockett and Tammy Warner, on cross-examination. Leitner asserts that such evidence should have been allowed under the judicial marital homicide exception to K.S.A. 2000 Supp. 60-460 originally crafted in State v. Taylor, 234 Kan. 401, 408, 673 P.2d 1140 (1983). Leitner concludes that the trial court’s actions denied her the right to confront witnesses and limited her ability to present a defense. Therefore, she contends that the trial court committed reversible error.
“The Confrontation Clause of the Sixth Amendment to the United States Constitution affords an accused the right to cross-examination. The United States Supreme Court has ‘recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’ Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). The district court’s decision . . . concerning the scope of cross-examination is reviewed under the abuse of discretion standard. [Citation omitted.]” State v. Albright, 271 Kan. 546, 550, 24 P.3d 103 (2001).
“A judge . . . has broad discretion to control examination and reviewing courts will not interfere unless discretion has been abused.’ ” State v. Mitchell, 234 Kan. 185, 188, 672 P.2d 1 (1983). “The appropriate standard of review is not one of constitutional error, but whether the trial judge abused her discretion.” State v. Lyons, 266 Kan. 591, 601-02, 973 P.2d 794 (1999).
Prior to trial, a motion in hmine was filed by the State, which sought to limit the introduction of specific instances of Michael’s misconduct. The State asserted that since self-defense was an issue in the case, evidence of Michael’s turbulent character was admissible if confined to evidence of his general reputation in the community. The State asserted that language in State v. Deavers, 252 Kan. 149, 156-57, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993), provided authority for its requested motion in hmine:
“Where self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of a conviction of a crime.” 252 Kan. at 156-57.
In her response to the State’s motion, Leitner relied upon Lumley for the proposition that evidence of specific instances of the Michael’s misconduct could be introduced under the “marital homicide exception.” In Lumley, this court reiterated the marital homicide exception first set forth in Taylor:
“ ‘Evidence of prior acts between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish the relationship between the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of tire complaining witness as to the act charged. Cases have allowed prior conduct to be admitted into evidence where a family relationship existed.’ 234 Kan. at 407.” Lumley, 266 Kan. at 954.
The trial court held a pretrial hearing on the motion but did not rule on the issue at that time. On August 25, 1999, the third day of trial, the issue was revisited.
Counsel for Leitner twice requested permission to cross-examine a witness called by the State about specific incidents when Michael physically abused Leitner during their marriage. First, he asked to cross-examine Tammy Warner about evidence of marital discord between Leitner and Michael. The State indicated it would call Warner to testify regarding her conversation with Leitner in which Leitner threatened to kill Michael less than a month before the murder. The trial court sent the jury outside the courtroom and heard Warner’s proffered testimony of her personal knowledge of physical violence between Michael and Leitner. Warner testified that although she had not witnessed the fight, she had personally seen Leitner with a black eye and that both Michael and Leitner told her how it happened. The court ruled that the proffered evidence would be outside the scope of the State’s proposed direct examination, in that evidence allegedly showing her hatred towards the defendant was not the same as marital discord: “The relationship has changed. She’s no longer married to the defendant.”
Later in the trial, counsel for Leitner approached the court prior to the direct examination of Gary seeking to elicit on cross-examination his “general knowledge of the violent nature of the relationship . . . The trial court indicated that the permissiveness of the inquiry was dependent on the scope of his direct examination by the State, declaring: “His response to that subject matter’s going to determine whether it might open some doors or not.”
At trial, opposing counsel argued over whether defense counsel could inquire on cross-examination about specific instances of violent behavior for the reason that evidence of the relationship between the deceased and the accused is generally admissible.
“We have addressed the issue of relevance of evidence of a discordant relationship between a defendant and a victim in numerous cases and have held that admission of evidence of a discordant relationship is admissible independent of K.S.A. 60-455 and relevant to show die ongoing relationship between die parties, the existence of a continuing course of conduct, or to corroborate die testimony of witnesses as to die act charged. See State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991); State v. Taylor, 234 Kan. at 407; State v. Green, 232 Kan. 116, Syl. ¶ 4, 652 P.2d 697 (1982). In Hedger, we also discussed the remoteness of such evidence and held that any lapse of time between die acts described in die trial testimony and die acts alleged does not preclude die admission of evidence relative to motive and intent, but only goes to die weight to be given die evidence. 248 Kan. at 820 (citing State v. Green, 232 Kan. 116, Syl. ¶ 5).” State v. Clark, 261 Kan. 460, 470, 931 P.2d 664 (1997).
Through her own testimony, Leitner was able to present evidence of approximately 70 acts of abuse against her by Michael. An instruction on self-defense was given to the jury. Leitner indicated she shared stories of the abuse with her sister, Tammy Warner. The trial court offered to extend the out-of-state subpoena of Warner so that Leitner could call her as a witness in her case in chief, but Leitner declined to do so. Leitner called Gary to the stand, and he testified that Leitner told him Michael had slapped her during fights, but Gary had never seen Michael hit Leitner.
Here, the core issue is not whether evidence of Leitner and Michael’s discordant relationship was admissible, but rather whether the judge’s limitation of the cross-examination of witnesses to the scope of direct examination constituted an abuse of discretion. Because Leitner was given the opportunity to present evidence of marital discord during her own case in chief, the trial court’s fimitation of the cross-examination of witnesses Gary and Warner to the scope of direct examination was reasonable. Under the facts of this case, the trial court did not abuse its discretion.
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The opinion of the court was delivered by
Allegrucci, J.:
Alberto Vasquez appeals from the district court’s denial of his motion to withdraw his plea of guilty to premeditated first-degree murder. The sole issue on appeal is whether the trial court erred in refusing to allow Vasquez to withdraw his guilty plea prior to sentencing.
Defendant Alberto Vasquez and the victim, Maria Lorena Garcia, lived together in Dodge City, Kansas. On January 18, 1999, Garcia told defendant that, she intended to leave him and move out of state.
The following day, Garcia and one or two other women were in the house that defendant and the victim had shared. They saw defendant sitting outside in his car. He was upset, drinking, and crying. When defendant left, the women left the house to go see a friend.
When the women returned, defendant was standing on the porch with his arms crossed over his chest and his hands concealed in his armpits. He moved toward the women and shouted at the two women who accompanied Garcia. He asked, "Why did you take her from me? Why did you do it?”
Defendant then ran to Garcia and began striking her. One of the women who witnessed the attack believed at first that defendant was hitting Garcia, but after the third or fourth blow realized that defendant had a knife in his hand and was stabbing Garcia.
Garcia died as the result of at least 16 stab wounds in her neck and chest. Investigation showed that a knife was missing from the kitchen of the house where the defendant and Garcia had lived.
The defendant fled to Missouri. He was driving a car stolen from Ford County, Kansas, when he was arrested.
The record shows that Vasquez was charged with one count of premeditated first-degree murder and one count of felony theft. On January 26, 2000, defendant entered a plea of guilty to the murder charge. At that time, the State dismissed the theft count. On April 6, 2000, Vasquez filed a motion seeking leave to withdraw his guilty plea. Finding that defendant had failed to show good cause why he should be permitted to withdraw his plea of guilty, the district court denied the motion. On May 5, 2000, defendant was sentenced to life imprisonment.
K.S.A. 2000 Supp. 22-3210(d) provides: “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.” The trial court’s denial of a motion to withdraw a plea of guilty will be reversed only if the trial court abused its discretion. State v. Baldwin, 28 Kan. App. 2d 550, Syl. ¶ 2, 18 P.3d 977 (2001). Judicial discretion is abused only when no reasonable person would take the view adopted the by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
The argument defendant made in the district court for being allowed to withdraw the plea was different from the arguments on appeal. In the trial court, defendant’s written motion for permission to withdraw his plea alleged a discrepancy between the actual length of the sentence possible under the plea agreement and defendant’s understanding of the length of the sentence possible under the plea agreement. Defendant’s motion stated:
“3. That the defendant believes either that he was misled or that the agreement was not adequately explained to him.
“4. That the defendant understood the sentence he was to receive based on his plea was to be from 23 years to life in prison; but the minimum sentence the Court would be required to impose based upon the defendant’s plea was life in prison with parole eligibility after twenty-five years.
“5. That defendant further understood that his counsel would work toward a plea agreement that would result in a sentence of less than twenty-five years or deportation; that defendant wrote what his counsel told him to write on the plea bargain agreement form and signed it because he was told that it would help him.
“6. That the defendant believes that the above stated differences are substantial and he would not have entered the plea had he correctly understood the sentence he would receive.” (Emphasis added.)
On appeal, the arguments concentrate more on possible explanations for defendant’s failing to understand the sentencing aspect of the plea agreement than on his misunderstanding itself. Vasquez contends that his mental/emotional instability and his inability to understand/lack of understanding of the meaning and consequences of his plea add up to good cause why he should have been permitted to withdraw his plea of guilty. He cites the following factors: severe, suicidal depression; hallucinations; brain damage and resulting seizure disorder; minimal education; IQ of 70; and reliance on an interpreter in communications with his attorney.
The State first argues that the trial court’s ruling must be affirmed because defendant’s motion failed to allege that he was not guilty of the offense charged. The State further contends that there was no abuse of the trial court’s discretion.
For the proposition that a presentence motion to withdraw a guilty plea may be denied on the single ground that defendant failed to include the allegation that he or she is not guilty of the charged offense, the State cites State v. Christensen, 23 Kan. App. 2d 910, 912, 937 P.2d 1239 (1997)(disapproved on other grounds, State v. Bolin, 266 Kan. 18, 968 P.2d 1104 [1998]), and State v. Johnson, 258 Kan. 607, 610-11, 907 P.2d 140 (1995). Both of those cases state that “the motion should allege that the defendant is not guilty of the offense charged,” but neither treats such an allegation as an absolute requirement to the success of a motion to withdraw a plea.
In State v. Nichols, 167 Kan. 565, Syl.¶ 5, 207 P.2d 469 (1949), the court stated with regard to a motion to withdraw a plea of guilty: “Normally it should allege the defendant is not guilty of the offense charged; that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea.” No authority is cited. In the text of the opinion, the court stated:
“When the accused is represented by capable counsel and the [guilty] plea is freely, fairly and intelligently made, and its consequences understood, it should not be set aside. When some or all of these facts are lacking, common justice may authorize or require the setting aside of the plea. The appropriate method of seeking to have that done is for defendant to file a motion in the same court and in the same case in which the plea was entered. The motion should set up the facts in issuable form showing or tending to show grounds upon which the plea should be set aside. Ordinarily it is required to allege that the defendant is not guilty of the crime charged. The time of the filing of the motion, whether before or after the sentence, is not controlling.” 167 Kan. at 577-78.
No authority is cited.
When Nichols was decided, there was no statute “specifically pertaining to motions to withdraw pleas of guilty in criminal cases.” 167 Kan. 565, Syl. ¶ 4. In the absence of a statute, a matter was “handled in each case upon principles of natural justice as applied to the facts of the case and the legal situation.” 167 Kan. 565, Syl. ¶ 4. In 1970, the legislature enacted a Kansas code of criminal procedure which included the provision that still governs presentence withdrawal of a plea of guilty or nolo contendere. L. 1970, ch. 129, § 22-3210(7).
It was not until 1992 that this court cited Nichols for the proposition that, in order to justify a motion seeking leave to withdraw a plea before sentencing, “the motion should allege that the defendant is not guilty of the offense charged.” State v. Larry, 252 Kan. 92, Syl. ¶ 4, 843 P.2d 198 (1992). The qualifying words, normally and ordinarily, that were part of the statements in Nichols do not appear in Larry. The pertinent syllabus paragraph of Larry was quoted in State v. Johnson, 258 Kan. 607, Syl. ¶ 2, 907 P.2d 140 (1995), and in the text of the opinion, 258 Kan. at 610-11. The pertinent text of Johnson was restated in State v. Taylor, 266 Kan. 967, 976, 975 P.2d 1196 (1999).
In neither Larry nor Johnson does the lack of an allegation that defendant was not guilty of the offense charged seem to have been pivotal in the court’s affirmance of the trial court’s denial of the motion to withdraw. Of greater significance to this discussion is that, in Taylor, the defendant’s motion failed to allege that he was not guilty as charged, and yet this court found that the trial court abused its discretion in refusing to permit defendant to withdraw his plea and reversed and remanded for a new hearing. In a recent case that cites Taylor for factors to be considered in evaluating a motion to withdraw a plea before sentencing, there is no mention of an allegation that the defendant is not guilty of the offense charged. State v. Bey, 270 Kan. 544, 545, 17 P.3d 322 (2001).
It is apparent that this court does not require an allegation that defendant is not guilty as charged as a prerequisite for withdrawing a plea of guilty or nolo contendere prior to sentencing. Nor is there such a requirement in the statute, which bases withdrawal on good cause shown and on the discretion of the trial court.
In any event, it should be noted in the present case that within 30 days of arraignment defendant filed a notice that he intended to assert the defense that, as a result of mental disease or defect, he lacked the mental state required as an element of the offense charged. Thus, the court and opposing counsel were on notice of defendant’s initial position that he was not guilty as charged.
Appellant states that the question for this court is whether good cause was shown. He contends that good cause has not been defined and directs the court’s attention to federal cases for guidance. Federal Rule of Criminal Procedure 32(e) provides: “If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Defendant would equate “any fair and just reason” with the phrase “for good cause shown” from K.S.A. 2000 Supp. 22-3210(d). He also brings cases from other states’ courts to this court’s attention. The common lesson he would draw from the foreign cases is that a presentence motion to withdraw is to be viewed with liberality.
Specifically addressing his own circumstances, Vasquez urges the court to take into account the “troubling picture” of his own mental status in the months before he entered his plea of guilty to premeditated first-degree murder on January 26, 2000. Review of the record shows that opinions vary as to defendant’s mental condition.
Vasquez was examined at Lamed State Security Hospital in May 1999 and found competent to stand trial. On June 4,1999, he was returned to custody in Ford County. That day he attempted suicide in his cell and was returned to Lamed State Security Hospital, where he was re-evaluated. On June 14, 1999, the hospital staff met in conference with Vasquez. Dr. Fernando reported to the court:
“When seen at the staff conference, apart from the dysthymic mood, Mr. Vasquez .appeared to be well oriented and his memory and cognitive functioning appeared to be within normal limits. As he had done previously, he showed understanding of his present charges and die consequences of being found guilty. He indicated the willingness and the need to work with an attorney in his case although when asked what he needed assistance with, Mr. Vasquez did not respond. It is the opinion of the staff that Mr. Vasquez understands his charges and the consequences of being found guilty. He has die capability and die stability which would enable him to assist his attorney in formulating and presenting a legal defense. Therefore, it is the opinion of the staff Mr. Vasquez still fulfills the criteria to be considered competent to stand trial (which was also indicated in the previous port of May 26, 1999).
“A review of his mental status indicated Mr. Vasquez, while having a dysthymic mood which is directly connected to his present legal situation, has no known psychiatric histoiy; although the mood is dysthymic at this time, there is no report of Mr. Vasquez previously suffering from a major mood disorder. Review also indicate^] his action on attempting to harm himself is directly related to his understanding of the severity of the charges that are leveled against him, possible lengthy imprisonment, and his reluctance to face those charges. It is also believed his behavior is due to an impaired judgmental process which he is manipulating in order to avoid the consequences of his charges. It is also noted that the probability of him repeating these behaviors of self-harm is high (considering his behavior pattern) and it is recommended that measures be taken to prevent such behaviors.”
Defense counsel also sought and obtained leave for defendant to be examined and psychologically evaluated by Robert W. Barnett, a licensed psychologist. Barnett interviewed and examined Vasquez with the translation services of Ms. Soto, a court bailiff in Ford County District Court. The examination took place on August 3,1999, at the Ford County Jail. Barnett found Vasquez in a major depression, and he observed that, if the Lamed State Security Hospital’s assessment of dysthymic mood was accurate, defendant’s mood had deteriorated in the intervening 2 months. Aside from severe depression, Barnett’s findings were not remarkable. He stated: “In my clinical opinion, Mr. Vasquez does not suffer from any psychotic disorder and any psychotic symptoms that he [is] experiencing now, such as auditory hallucinations, are the result of his major depressive episode.” Vasquez did poorly on the intelligence evaluations, but Barnett suggested that the score “may underestimate his intellectual potential due to translation difficulties and [defendant’s] lack of motivation.” Barnett noted that the results of defendant’s visual motor test “are suggestive of moderate organic brain dysfunction,” perhaps from asphyxiation during his suicide attempt.
On appeal, defendant seems to argue that Barnett’s report constitutes good cause why Vasquez should have been permitted to withdraw his plea and ought to be the basis for this court’s concluding that the trial court abused its discretion in refusing to permit withdrawal. The only reason contained in Barnett’s report that might constitute good cause for Vasquez being permitted to withdraw his plea of guilty is his severe depression. Vasquez has brought no cases to the court’s attention in which depression alone was the basis for withdrawal of a plea of guilty or nolo contendere. Barnett’s report does not support defendant’s reliance on the other factors— hallucinations, brain damage and resultant seizure disorder, minimal education and 70-point IQ, and inability to speak English — as constituting good cause for withdrawal of his guilty plea. Barnett linked Vasquez’ reported auditory hallucinations to his depression and ruled out psychosis. Barnett suggested a possibility of a seizure disorder based on Vasquez’ reported childhood incident and a rare possible link between a seizure disorder and violent behavior. Barnett stated that Vasquez should be evaluated by a neurologist with regard to tírese possibilities. Further evaluation was neither requested nor conducted. Barnett suggested that Vasquez’ intellectual ability was greater than his test score indicated.
On appeal, defendant attempts to portray his reliance on a translator as adversely affecting his understanding of the proceedings. However, he points to nothing in the record that would show that doubts or complaints or questions about the translations were raised in the trial court. Indeed, as the plea proceedings got underway, the trial court asked if there were any objections to the previously established qualifications of the interpreter, and defense counsel said, “I have none.” Nor was any claim made against the interpreters or their translations at the hearing on defendant’s motion to withdraw his plea of guilty. Generally, an issue not presented to the trial court will not be considered for the first time on appeal. See State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). Also, on appeal Vasquez seems to have abandoned the claim he relied on in the trial court of a specific misunderstanding of the length and terms of his sentence. Moreover, review of the transcript of the plea proceeding shows that the misunderstanding singled out in the motion to withdraw was discussed with defendant, which led to his agreeing on the record that he understood that his sentence was fife imprisonment and that he would be eligible for parole after serving 25 years.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Bradly W. Johnson, of Olathe, an attorney admitted to the practice of law in Kansas.
Two separate complaints were filed against respondent. A formal hearing was had on said complaints before a hearing panel of the Kansas Board for the Discipline of Attorneys. The hearing panel concluded that respondent had violated KRPC 1.1 (competence) (2000 Kan. Ct. R. Annot. 300), KRPC 1.3 (diligence) (2000 Kan. Ct. R. Annot. 310), KRPC 1.4 (communication) (2000 Kan. Ct. R. Annot. 320), KRPC 1.16 (declining or terminating representation) (2000 Kan. Ct. R. An not. 371), and KRPC 8.4 (a), (c), (d), and (g) (misconduct) (2000 Kan. Ct. R. Annot. 420), and Supreme Court Rule 207 (failure to cooperate) (2000 Kan. Ct. R. Annot. 237) and recommended respondent be suspended from the practice of law for a period of 2 years. No exceptions have been filed.
It is appropriate, at this point, to include the panel’s final hearing report in this opinion almost in toto in order to fully understand the panel’s findings, conclusions, recommendations, and concerns. Some editing of format has been done.
“FINDINGS OF FACT
“The testimony presented in this case conflicted on many points. In making its findings of fact, the Hearing Panel considered the testimony and arguments presented, the demeanor of the witnesses, the corroboration of the evidence, the exhibits admitted into evidence, and the briefs filed after the close of the evidence. The Hearing Panel finds that clear and convincing evidence supports the following facts:
“1. Bradly W. Johnson (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 17849. His last registration address with tire Clerk of the Appellate Courts of Kansas is . . . Olathe, Kansas. . . . Immediately after being admitted to tire practice of law in the state of Kansas in 1995, die Respondent and diree law school classmates formed a partnership. Throughout the Respondent’s five years of practice, the Respondent has practiced in that partnership. The Respondent is also licensed to practice law in Missouri. At die time of die hearing, the Respondent was 31 years of age.
“Roberts Complaint (DA7699)
“2. On April 19, 1998, Phyllis Roberts contacted die Respondent, seeking representation of her husband, Randall K. Roberts, in connection with an outstanding warrant for his arrest which had been issued in Kansas, based upon a probation violation. The Respondent told Mr. Roberts diat die fee for die representation would be $500.00. The Respondent explained to Mr. Roberts that he would accept $100.00 per week and agreed to start work on the case when he had received $300.00.
“3. When Mr. Roberts had paid $400.00, Mr. Roberts called the Respondent. The Respondent asked Mr. Roberts to meet with him in his office. On June 2, 1998, Mr. and Mrs. Roberts met with the Respondent. At diat time, diey provided the Respondent widi all available information and paperwork diey had regarding the arrest warrant.
“4. The meeting on June 2, 1998, was the only time die Respondent personally met with Mr. or Mrs. Roberts.
“5. Following the meeting widi Mr. and Mrs. Roberts, the Respondent contacted members of die Johnson County District Attorney’s office, a Court Services Officer, and odier court personnel regarding the outstanding warrant for Mr. Roberts’ arrest. The Respondent was informed diat die Court Services Officer and the Assistant District Attorneys would not agree to set aside die arrest warrant and that, in order for Mr. Roberts’ case to be scheduled for hearing, Mr. Roberts would have to surrender himself to die Johnson County authorities.
“6. After die June 2, 1998 meeting at die Respondent’s office, Mrs. Roberts telephoned die Respondent on numerous occasions, attempting to learn the status of the case. The Respondent avoided Mrs. Roberts’ telephone calls and, as a result, Mrs. Roberts was able to reach die Respondent on only a couple of occasions. During those telephone conversations, the Respondent assured Mrs. Roberts that he was working on the case. The Respondent failed to communicate to Mr. Roberts diat he would have to surrender himself in order for die case to be scheduled for hearing. [Footnote: The Respondent testified that he fully informed Mrs. Roberts diat Mr. Roberts would have to surrender himself to the authorities in order for his case to be heard. However, based upon all of the evidence, including die testimony of Mr. Roberts, Mrs. Roberts, and die Respondent, the Hearing Panel finds Mrs. Roberts’ testimony on the issue to be credible.]
“7. On most occasions when Mrs. Roberts telephoned the Respondent, however, Mrs. Roberts was unable to contact the Respondent. On those occasions, Mrs Roberts left messages, requesting that die Respondent return die telephone call. The Respondent did not return Mrs. Roberts’ telephone calls.
“8. Additionally, on December 1, 1998, Mrs. Roberts sent a letter to die Respondent. The Respondent failed to respond to Mrs. Roberts’ letter.
“9. The Respondent never provided Mr. or Mrs. Roberts with any written correspondence regarding die status of the case.
“10. To date, the Respondent has not returned any unearned fees to Mr. Roberts. The Respondent testified that he had charged Mr. Roberts a ‘flat fee’ and that he had earned his fee based upon the amount of time diat he had invested in the case.
“11. In October, 1999, Mr. Roberts sent a letter of complaint to the Office of the Disciplinary Administrator. Thereafter, the case was referred to the Ethics and Grievance Committee of die Johnson County Bar Association for investigation. Michael E. Whitsitt was assigned to investigate Mr. Roberts’ complaint. Mr. Whitsitt wrote to die Respondent twice and placed a telephone call to the Respondent, requesting that die Respondent provide a written response to Mr. Roberts’ initial letter of complaint. The Respondent failed to respond to Mr. Roberts’ complaint.
“Nobles Complaint (DA7910)
“12. In early 1997, Waymond Nobles read an advertisement in Pitch Weekly regarding die Respondent’s firm. The advertisement indicated that the firm handled employment discrimination cases. [Footnote: At the hearing on this matter, die Respondent testified that prior to accepting Mr. Noble’s case, neither he nor any of his partners had ever handled an employment discrimination case.] Based upon the advertisement, Mr. Nobles contacted the Respondent. During the relevant times in 1997 and thereafter, Mr. Nobles was a resident of Springfield, Missouri. The Respondent and Lee Davidson (one of the Respondent’s partners) traveled to Springfield, Missouri, and met with Mr. Nobles.
“13. Thereafter, Mr. Nobles retained the Respondent to file and prosecute a claim of race discrimination in his behalf against Mr. Nobles’ former employer, die Boys and Girls Town of Missouri. Mr. Nobles and the Respondent entered into a contingency fee agreement.
“14. On June 3, 1997, the Respondent filed a complaint in the United States District Court for die Western District of Missouri, Southern Division. The complaint was captioned: Waymond Nobles v. Boys and Girls Town of Missouri, et al., case number 97-3282-CV-S-RGC. In the complaint, the Respondent alleged diat Mr. Nobles had been terminated from his employment in violation of Title VII of the Civil Rights Act of 1964.
“15. During the course of his representation, the Respondent traveled to Springfield, Missouri, on three or four occasions to meet with Mr. Nobles.
“16. Prior to filing the complaint, the Respondent conducted no investigation into the allegations underlying Mr. Noble’s claim other than his interview with Mr. Noble. Several names of potential witnesses were provided to the Respondent. The Respondent did not interview any witnesses.
“17. During die pendency of die complaint, Mr. Nobles placed numerous telephone calls to die Respondent. The Respondent failed to return nearly all of Mr. Nobles’ telephone calls. Additionally, Mr. Nobles expected to receive monthly status reports. The Respondent did not provide mondily status reports to Mr. Nobles. Mr. Nobles’ expectation of attention from die Respondent and communication widi the Respondent was unreasonable. However, the Respondent failed to maintain reasonable communication with Mr. Nobles.
“18. In June, 1998, Mr. Nobles became concerned about die status of his case. Because die Respondent was not keeping Mr. Nobles informed, Mr. Nobles traveled to the Clerk’s office and obtained a copy of the docket sheet associated with his case. At diat time, he learned that the deadline for formal discovery was slated for July 1, 1998.
“19. On June 18,1998, Mr. Nobles sent a letter to the Respondent inquiring about the Respondent’s failure to conduct discovery and failure to communicate with him about the status of the case. The Respondent did not reply to die letter.
“20. The discovery deadline passed and the Respondent conducted no discovery. On direct examination by the Disciplinary Administrator, die Respondent testified as follows:
‘Q. Did you take any witness statements?
‘A. No, I did not.
‘Q. Did you depose anybody?
‘A. No, we did not.
‘Q. Did you make a decision diat discovery by way of depositions or interrogatories was not necessary in this case?
‘A. We had gotten very extensive discovery from the defendant. The motion for summary judgment was docketed, and we went that route. We — that’s all.
‘MR. PALMER [Panel Member]: I’m sorry. I didn’t understand die question. Mr. Hazlett asked you — or the answer. I understood the question. Mr. Hazlett asked you if you made a decision as to whetiier discovery was necessary on die part of die plaintiff in this case. I mean, that’s kind of a “yes” or “no” tiling. Did you do any discovery or not.
‘MR. JOHNSON: Yes, we did discovery.
‘MR. PALMER: What did you do?
‘Q. (by Mr. Hazlett) [Disciplinary Administrator] What discovery did you do?
A. We got extensive discovery from the defendant, went through it at length. We did not provide discovery to the other side, as it was never compelled. We continually tried to track down these juveniles who were on die run or in die facility.
‘Q. What about Mr. Nobles’ superiors? Did you think it was necessary to depose diem?
‘A. I would have deposed them after summary judgment, yes.
‘Q. I’m sorry. You would have deposed them after summary judgment?
‘A. Yes.
‘Q. Wasn’t diere a discovery deadline, though, of July 1st, 1998?
‘A. That was on the initial disclosures was my understanding, yes. At diat point, we had — I talked to Waymond and we had made a decision to try to keep discovery as close to die vest as possible as far as giving anything away of his case. They weren’t successful in compelling our testimony or his deposition or his interrogatories.
‘MR. MCCAMISH [Panel Member]: I’m not following diat eidier. I’m sorry. Say again what you mean by playing close to the vest on discovery as far as die discovery from the plaintiff.
‘MR. JOHNSON: Waymond — I had Waymond provide responses. We had interviewed Waymond. He had gotten affidavits from Waymond. He had prepared everything that the odier side would want. However, the other side was never successful in, I guess, getting an order compelling us to turn those over, and they had given us everything they had.
‘Q. Did you provide your initial disclosures?
‘A. No.
‘Q. Why not?
‘A. As I said, I was going to make die defendants work to get what we had. And if you’ll look on the next page, 26, Judge Clark dismissed die motion to compel production.
‘Q. Why did that happen? Do you recall?
‘A. I do not recall off die top of my head, and I don’t want to venture a guess. I believe it was not noticed up correctly, and they never revisited it.
‘Q. What do you mean by making the defendants work to get what you had?
‘A. We were a firm of four people. They were a fairly large firm. I felt no inclination just to hand them something and make their job easier until I made diem actually try to jump dirough hoops, because I knew they would eventually make me jump through hoops, being a smaller firm.
‘Q. By making them jump through the hoop, would that be forcing them to file a motion to compel you to give them what you had?
‘A. Yes.’
“21. On August 17, 1998, die defendants filed a motion for summary judgment. On September 4, 1998, the court ordered that die Respondent file a response to the motion for summary judgment on or before September 25, 1998. The Respondent did not file a response to die motion for summary judgment on or before September 25, 1998.
“22. On September 28, 1998, die Respondent filed a motion to extend the deadline to respond to die motion for summary judgment. The court granted die Respondent’s motion and ordered diat die Respondent respond to die motion for summary judgment on or before October 26, 1998. The Respondent did not file a response to the motion for summary judgment on or before October 26, 1998.
“23. On October 29, 1998, the Respondent filed suggestions in opposition to fire motion for summary judgment. The pleading, prepared by tire Respondent contained no authority, and was supported only by a self-serving conclusory affidavit from Mr. Nobles.
“24. Although tire suggestions in opposition to tire motion for summary judgment were filed three days after tire extended deadline, the Respondent testified that tire pleading was timely filed:
‘Q. And looking at Exhibit 6 again, it has a file stamp on it of October 29 of 1998, so that document, in fact, was not filed in compliance with the judge’s order, was it?
‘A. Yes, it was. There’s an additional — I don’t want to misstate tire rule. There may be actually additional time, but there’s a minimum of additional time when notified by mail of the order, and that’s what we were.’
“25. On November 18,1998, the court granted tire motion for summary judgment.
“26. Mr. Nobles learned of tire entry of judgment by obtaining a copy of tire docket sheet associated with his suit. [Footnote: The Respondent testified that upon learning of the entry of judgment, the Respondent telephoned Mr. Nobles and informed him of the ruling. The Respondent further testified that Mr. Nobles’ testimony on his subject was ‘not correct.’ The Hearing Panel finds Mr. Nobles’ testimony to be credible and finds the Respondent’s testimony on this subject to be not believable.] After learning of the entry of judgment, Mr. Nobles contacted tire Respondent by telephone. During that telephone conversation, the Respondent agreed to file an appeal from tire ruling on the summary judgment motion. At tire hearing on the formal complaint, Mr. Palmer and the Respondent engaged in tire following exchange:
‘Q. Was it your opinion that the trial court in the Western District of Missouri’s decision granting defendant’s summary judgment was correct? I mean, at tire time you received it, was that your opinion?
‘A. Objectively speaking, yes. I would liked it not to have been, but yes.
‘Q. But you agreed to file an appeal notwithstanding?
‘A. Yes.’
“27. On December 18, 1998, the Respondent filed a notice of appeal with tire United States Court of Appeal for the Eighth Circuit (case number 98-4214). Mr. Nobles’ brief was due on February 9, 1999. The Respondent did not file a brief in behalf of Mr. Nobles by February 9, 1999.
“28. On February 9, 1999, the Respondent mailed a letter to the Clerk for tire United States Court of Appeals, Eighth Circuit, requesting additional time to file a brief in behalf of Mr. Nobles. It is not clear, from tire record, if the court took any action as a result of tire Respondent’s letter of February 9, 1999.
“29. Thereafter, on March 3, 1999, tire court issued an order to show cause why tire appeal should not be dismissed for want of prosecution. In its order, the court permitted the Respondent 15 days to respond to tire order.
“30. On March 23, 1999, Mr. Nobles filed a response to the order to show cause. On March 31, 1999, the court dissolved the order to show cause and ordered that tire Respondent file a brief in behalf of Mr. Nobles by April 2, 1999.
"31. The Respondent did not file a brief in behalf of Mr. Nobles by April 2, 1999. However, the Respondent told Mr. Nobles that he had filed a brief. The following testimony by Mr. Nobles addresses this issue:
‘A. ... He stated that he had filed those briefs, they had already been mailed, and that they should have got them. The clerk said, “No, if the mail would have came here, the briefs would have been stamped, and we would have received them.”
‘Q. Is drat the first time that Mr. Johnson stated that dre brief in the appeal had been filed?
‘A. Yes.
‘Q. And that was in a conversation, a drree-way conversation between you and dre clerk and Mr. Johnson?
'A. Yes, the clerk in dre federal court in St. Louis.
‘Q. And, specifically, tell me again what it was that Mr. Johnson said about dre brief in the case.
‘A. Mr. Johnson said he had already mailed the brief, and drat drey should have received them, and drat they should have got them, and the lady was telling him that they hadn’t got them. And then I had to file, myself I had to file for an extension of time. . . .
[Footnote: The Respondent denies making'dris statement to Mr. Nobles and a Clerk of dre Eighth Circuit Court of Appeals. However, the Hearing Panel finds that Mr. Nobles testimony on this matter is credible, and the Respondent’s testimony is not.]
“32. On April 27, 1999, the court issued a second order to show cause why dre appeal should not be dismissed for failure to prosecute. In its order, dre court gave dre Respondent 15 days to respond to the order.
“33. Curiously, dre Respondent interpreted the court’s order to show cause as an extension of time to file his brief. The following transcript excerpts establish dre Respondent’s position:
‘Q. [By Mr. Hazlett] Did you comply with the briefing schedule?
‘A. Yes, I did, until terminated by Mr. Nobles. I was — I was not out of compliance with dre briefing schedules.
‘Q. You’re saying, now, when were you — at what date were you fired by Mr. Nobles?
‘A. April 29th, tire day drat he testified we had a three-way phone call.
‘Q. Is it your indication drat you were fired on April 29 of 1999?
‘A. Yes.
‘Q. So weren’t you responsible for filing that brief that was due April 2nd?
‘A. I had discussed the matter—
‘MR. PALMER: Now, the answer calls for “yes” or “no.” Were you responsible for filing a brief on April 2, 1999, in the 8th Circuit?
‘MR. JOHNSON: Yes.
‘Q. (By Mr. Hazlett) Did you file a brief?
‘A. No.
‘Q. On April 27th of 1999 — again, I’m on Page 58 of Exhibit 8 — a show cause order was issued. Did you ever respond to the — you, did you ever respond to the show cause order?
‘A. The one that was issued on the 27th of April?
‘Q. Right.
‘A. No, sir.
‘Q. Why not?
‘A. In my mind, I was terminated on the 29th of April.
‘Q. [By Mr. Rohrbaugh] [Counsel for Respondent] . . . What work had you done toward getting a brief filed?
‘A. Gotten all the cases I thought I would need. I was ready to write a brief At the time I was fired, I had at least, by my calculations, two weeks to get it done. I was ready to do it. I’ve always found, in anything I’ve done, the hard part is getting to that point where you sit down and write it. It is something that could have been done. I had done die hard work, the leg work, the research trying to find anything that would support my position. I was fired two days after I got the order giving me time to get it done.
‘BY MR. MCCAMISH:
‘Q. By your calculation, before you were fired, you had two weeks to do the brief?
‘A. Yes, Judge.
‘Q. Was that as a result of die show cause order issued on April 27di?
‘A. Yes. There was die show cause order issued on the 27th. That gave two weeks, 15 days from the date of that order, plus the additional time for mailing. I was fired two days after that order was actually entered.
‘Q. Okay. Did die show cause order, as the docket sheet indicates, direct you to show cause why die appeal should not be dismissed for failure to prosecute?
‘A. Yes, it did that.
‘Q. Was that, by your interpretation, a two-week extension of time to file a brief in the case?
‘A. Yes.’
“34. Although the Respondent testified that Mr. Nobles terminated the Respondent’s representation on April 29,1998, die Respondent never filed a modon to withdraw from the representation. [Footnote: Again, the Hearing Panel finds that Mr. Nobles’ testimony is credible and that Mr. Nobles did not fire the Respondent.]
“35. On May 13, 1999, Mr. Nobles personally filed a response to the order to show cause. On May 19,1999, the court granted Mr. Nobles until June 4,1999, to file a brief or have a new attorney enter an appearance.
“36. Because die Respondent abandoned Mr. Nobles, on June 4, 1999, Mr. Nobles filed a brief, pro se. On July 14, 1999, the defendants filed their briefs. Thereafter, on October 28, 1999, the United States Court of Appeals for the Eighth Circuit affirmed the judgment of the district court.
“37. On September 12, 1999, Mr. Nobles sent a letter of complaint to the Missouri disciplinary authorities. [Footnote: Because Mr. Johnson’s office is located in Olathe, Kansas, the Missouri disciplinary authorities forwarded a copy of Mr. Nobles’ letter of complaint to the Kansas Office of the Disciplinary Administrator. The Missouri disciplinary authorities are awaiting the outcome of this disciplinary proceeding before taking action on Mr. Nobles’ complaint.] On April 20, 2000, Frank D. Diehl, Deputy Disciplinary Administrator sent a letter to the Respondent, notifying the Respondent that Mr. Nobles had filed a complaint. Mr. Diehl asked the Respondent to respond to the complaint in writing within twenty days. The Respondent failed to do so. Thereafter, the case was referred to the Ethics and Grievance Committee of the Johnson County Bar Association for investigation. Steven D. Ruse was assigned to investigate Mr. Nobles’ complaint. Mr. Ruse sent the Respondent two letters requesting that the Respondent provide a written response to Mr. Nobles’ initial letter of complaint. The Respondent failed to respond.”
Based upon these findings of fact the panel concluded respondent had violated KRPC 1.1 (competence) (2000 Kan. Ct. R. An-not. 300), KRPC 1.3 (diligence) (2000 Kan. Ct. R. Annot. 310), KRPC 1.4 (communication) (2000 Kan. Ct. R. Annot. 320), KRPC 1.16 (declining or terminating representation) (2000 Kan. Ct. R. Annot. 371), and KRPC 8.4 (a), (c), (d), and (g) (misconduct) (2000 Kan. Ct. R. Annot. 420), and Supreme Court Rule 207 (2000 Kan. Ct. R. Annot. 237). The panel held as follows:
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires theiegal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ In the Nobles case, the Respondent did not competently represent Mr. Nobles. The Respondent failed to initially investigate Mr. Nobles’ claim, the Respondent failed to competently evaluate the value of the claim, the Respondent failed to conduct appropriate discovery during the pendency of the case, die Respondent failed to competently respond to the motion for summary judgment, and the Respondent failed to competently prosecute the appeal. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The Respondent failed to act with reasonable diligence and promptness in representing Mr. Nobles when he failed to diligently investigate the claim, when he failed to conduct discovery and appropriately respond to requests for discovery by the defendants, when he failed to timely file a response to tire motion for summary judgment, and when he failed to timely file a brief on appeal. As such, the Hearing Panel concludes that tire respondent violated KRPC 1.3.
“4. KRPC 1.4(a) requires attorneys to keep clients ‘reasonably informed about the status of a matter.’ The Hearing Panel concludes that the Respondent violated KRPC 1.4(a) as follows:
a. In tire Roberts case, tire Respondent violated KRPC 1.4(a) when he failed to return telephone calls, respond to letters, and keep Mr. and Mrs. Roberts reasonably informed about the status of their representation.
b. With regard to Mr. Nobles, the Respondent violated KRPC 1.4(a) when he failed to return telephone calls, respond to letters, and keep Mr. Nobles reasonably informed about the status of Iris case. The Hearing Panel is aware that Mr. Nobles was a difficult client and requested case status information more often tiran reasonable; however, the Hearing Panel finds that Respondent failed to respond to Mr. Nobles’ reasonable requests timely.
“5. KRPC 1.16(d) provides, as follows:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
By failing to notify Mr. Roberts that he was terminating the representation, and by failing to return any unused advance payments, the Respondent failed to take steps reasonably necessary to protect Mr. Roberts’ interests. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.16.
“6. ‘In die course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a diird person.’ KRPC 4.1(a). In the Nobles case, the Respondent made a false statement, when he told Mr. Nobles diat he had filed an appellate brief in behalf of Mr. Nobles. As such, die Hearing Panel concludes diat the Respondent violated KRPC 4.1(a).
“7. KRPC 8.4 provides, as follows:
‘It is professional misconduct for a lawyer to:
‘(a) Violate or attempt to violate die rules of professional conduct, knowingly assist or induce another to do so, or do so dirough die acts of another.
‘(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
‘(d) engage in conduct that is prejudicial to die administration of justice;
‘(e) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
In this case, the Hearing Panel concludes that the Respondent violated KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g).
a. When the Respondent failed to cooperate in the disciplinary investigation, in violation of Kan. Sup. Ct. R. 207, die Respondent‘[vi]olate[d] . . . die rules of professional conduct,’ in violation of KRPC 8.4(a).
b. The Respondent violated KRPC 8.4(c) when he falsely told Mr. Nobles that he had filed an appellate brief in Mr. Nobles behalf, when he had not.
c. The Respondent violated KRPC 8.4(d) when he failed to timely respond to the motion for summary judgment and failed to file a brief on appeal in Mr. Nobles case.
d. Finally, the Respondent violated KRPC 8.4(g) when he falsely told Mr. Nobles that he filed an appellate brief when he had not and when he failed to cooperate in the disciplinary investigation.
“8. Kan. Sup. Ct. R. 207(b) provides as follows;
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
The Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b) by failing to provide written responses to the initial complaints or otherwise comply with the requests of the Office of tire Disciplinary Administrator and the disciplinary investigators.”
The panel then recommended the discipline of 2 years’ suspension from the practice of law. In making this recommendation the panel stated as follows:
“RECOMMENDATION
“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, tire 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 clients, the legal system, and the public.
“Mental State. The Respondent knowingly violated Iris duties.
"Injury. The Respondent’s misconduct potentially injured Mr. Roberts, although actual injury is not apparent. In regard to Mr. Nobles, the Respondent’s misconduct caused actual injury to the administration of justice and potential injury to Mr. Nobles.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in die degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case found the following aggravating factors present:.
“Multiple Offenses. The Respondent violated multiple disciplinary rules in two separate cases. This element applies.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply unth Buies or Orders fo the Disciplinary Process. The Respondent completely ignored die disciplinary investigation and intentionally failed to comply witii Kan. Sup. Ct. R. 207. The Respondent’s flippant attitude toward the disciplinary process was exhibited at the hearing on this matter as follows:'
‘Q. [By Mr. Rohrbaugh] When the investigation began and a letter comes across the bow saying, “I’m investigating this case,” what did you do with die letters?
‘A. I have a drawer at work where I put them.
‘Q. Stuck them in the proverbial bottom drawer; is diat correct?
‘A. Top right, but it served the same purpose.’
Accordingly, the Hearing Panel finds that die Respondent engaged in a bad faidi obstruction of the disciplinary process.
“ Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Hearing Panel concludes that die Respondent’s testimony at the hearing was less dian forthright and, as shown by the Findings of Fact, not entitled to credit on some issues.
“Refusal to Acknowledge Wrongful Nature of Conduct. Aldiough the Respondent acknowledged that he failed to cooperate in die disciplinary investigations and diat he did not diligently pursue Mr. Nobles’ appeal, the Respondent steadfastly denied that his conduct violated any other rules of professional conduct and, instead, blamed Mr. and Mrs. Roberts and Mr. Nobles for instituting complaints. As such, the Hearing Panel concludes that the Respondent has, at no time during his representation of either party or during the entire pendency of this proceeding acknowledged to himself, or odiers, the gravity of his actions,
“Mitigating circumstances áre 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: [Footnote: In addition, the Respondent presented evidence concerning certain personal problems that he experienced during the time die misconduct occurred. Included with his brief (and therefore not subject to cross-examination), the Respondent provided a report from his therapist. The dierapist indicates that the Respondent has a defense mechanism of wididrawal when confronted by stressful issues. The Hearing Panel finds, however, the Respondent’s personal problems do not to mitigate die conduct.
“Finally, following die formal hearing, die Respondent submitted a letter to the Hearing Panel, expressing remorse for his actions. The Hearing Panel was in a position to assess die Respondent’s testimony and demeanor at die hearing and finds that die Respondent’s expression of ‘remorse’ to be in contravention to die attitude he projected at the hearing. The Hearing Panel believes diis ‘remorse’ to be similar to a ‘jail house conversion,’ and a last minute recognition of the response of the Hearing Panel to his testimony radier than an acknowledgment of die wrongful nature of his actions. As such, the Hearing Panel does not find diat die Respondent’s ‘remorse’ is a factor in mitigation.]
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Inexperience in the Practice of Law. The Respondent was relatively inexperienced when the violations occurred. Inexperience could be an explanation for some of the Respondent’s actions. An additional explanation could be die lack of a mentor. The evidence presented to the Hearing Panel was that die Respondent and three of his law school classmates formed a partnership following graduation and passing the Bar. This lack of an experienced lawyer in the firm probably lead to one of the Respondent’s transgressions in the Nobles’ case — advertising expertise, and accepting representation in a federal employment discrimination case, when no expertise in employment discrimination matters or federal court practice existed. Inexperience also undoubtedly lead to a series of incredible actions in the Nobles’ case, including failing to file the initial disclosures required by Fed. R. Civ. P. 26(a), failing to initiate any discovery in die case, failing to appropriately respond to defendant’s motion for summary judgment, filing a frivolous appeal to avoid a malpractice suit by Mr. Nobles, failing to file a timely brief or obtain appropriate extensions of time to do so, and, finally failing to wididraw from die appellate proceeding when ‘terminated’ by Mr. Nobles. See Findings of Fact, ¶¶ 1-2, 16, 20-21, 26-18, 33-34, supra. Inexperience may be forgiven. In this case, however, the Hearing Panel is forced to deal widi die Respondent’s testimony and demeanor at the hearing on November 15, 2000. The Respondent can no longer be labeled inexperienced. Instead of conceding the above-described actions were due to inexperience, the Respondent testified to a series of justifications diat were, in the opinion of die members of die Hearing Panel, incredible. If, in fact, die Respondent’s testimony under oadi at the hearing is to be believed, he still lacks the competency required to practice law in die State of Kansas.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The letters submitted by the Respondent from his friends and colleagues indicate that die Respondent enjoys a good reputation in his community.
“In addition to die above-cited factors, die Hearing Panel has thoroughly examined and considered Standard 4.42. That standard provides, in pertinent part:
‘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.’
Based upon the testimony and argument presented, the demeanor of die witnesses, the corroboration of die evidence, die exhibits admitted into evidence, and die briefs filed after the close of die evidence, die Hearing Panel unanimously recommends tiiat die Respondent be suspended from die practice of law in die State of Kansas for a period of two (2) years.”
DISCUSSION
To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Supreme Court Rule 211(f) (2000 Kan. Ct. R. Annot. 250); In re Harris, 261 Kan. 1063, 934 P.2d 965 (1997). A hearing panel’s report is deemed admitted under Rule 212(c) and (d) (2000 Kan. Ct. R. Annot. 254) when respondent fails to file exceptions. In re Farmer, 263 Kan. 531, 950 P.2d 713 (1997). See In re Howlett, 266 Kan. 401, 969 P.2d 890 (1998). No exceptions have been filed to the panel’s report. We conclude the panel’s findings of fact are supported by clear and convincing evidence and fully support the panel’s conclusions of law. The panel’s findings and conclusions are adopted by this court. This leaves the matter of determining the appropriate discipline to be imposed.
Much of the misconduct here concerns lack of diligence and failure to communicate with clients. These are serious failings but are of a nature that may be remedied by future heightened diligence and improved office procedures. There is, however, nothing in the report to indicate respondent comprehends the seriousness of these matters or the need to handle his practice differently in the future. Further, the final hearing report has disturbing comments and determinations as to deeper, less easily remedied, problems that reflect upon respondent’s basic competence to practice law. It is also obvious respondent left the panel with a bad impression of his attitude regarding the disciplinary proceedings. Respondent’s failure to proceed with discovery in the Nobles case, explained as trial strategy of playing it close to the chest until after the discoveiy deadline and summary judgment in order to keep the other side in the dark, shows a basic ignorance of the law. He also maintained to the panel that a motion to show cause why an appeal should not be dismissed for failure to prosecute is really just a 2-week extension in which to file an overdue brief. This is clearly a gross misinterpretation of basic legal proceedings which is particularly offensive to this court. We also note the panel found many instances where respondent’s testimony as to contested facts was not credible.
The panel has recommended suspension from the practice of law for a two-year period. After careful consideration, we conclude indefinite suspension is the appropriate discipline in this case.
It Is Therefore Ordered .that Bradly W. Johnson be and he is hereby indefinitely- suspended from the practice of law in the state of Kansas, commencing with the date of this opinion.
It Is Further Ordered that Bradly W. Johnson comply with Supreme Court Rule 218 (200 Kan. Ct. R. Annot. 266), that he pay the costs of this action, and that this order be published in the Kansas Reports. | [
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|
The opinion of the court was delivered by
Six, J.:
Defendant John Hermosillo appeals his convictions for one count of first-degree premeditated murder and four counts of forgeiy. K.S.A. 21-3401(a); K.S.A. 21-3710(a). Hermosillo was sentenced to a controlling sentence of fife with no possibility of parole for 25 years.
We consider Hermosillo’s claims of: (1) insufficient evidence to support his conviction for first-degree premeditated murder, (2) error in failing to instruct the jury on second-degree intentional murder, (3) error in denying his motion to suppress statements made during a custodial interrogation, and (4) prosecutorial misconduct.
Our jurisdiction is under K.S.A. 22-3601(b)(l) (appeal of a conviction resulting in an off-grid crime receives review by this court). Finding no error, we affirm.
FACTS
On April 23,1999, workers for Friendship Meals, when attempting to deliver lunch, discovered John Keeley’s body in his apartment in Lyons, Kansas. Keeley was sitting in his recliner in the living room. The television was on. Lyons Police responded to a 911 emergency call. Initially, the officers did not suspect that a criminal act had occurred. Upon examination of the body, the county coroner found bread and ham in Keeley’s mouth and some food particles on his mouth, chin, and neck. The coroner concluded that Keeley had died of suffocation by choking on the food. The body was sent to the local mortuary and embalmed for funeral preparation. After officers were informed by an anonymous call that foul play might be involved, an autopsy was ordered.
Keeley lived in a main floor apartment. Hermosillo lived below in a basement apartment. Within hours of Keeley’s death, Hermosillo told his friend Danny Alvarado that “he did it.” Alvarado did not know what Hermosillo was talking about. Although surprised about what he was hearing, Alvarado had previously heard Hermosillo talk about his intentions to kill Keeley. Alvarado told a friend, Rita Corbin, of Hermosillo’s talking about killing Keeley. Corbin testified:
“[CORBIN]: Well, it was about a week to two weeks before Mr. Keeley died, and . . . Danny [Alvarado] told me that Mr. Hermosillo had been talking about killing [Keeley].
“[THE PROSECUTOR]: Did Mr. Alvarado elaborate on any of that?
“[CORBIN]: Some, something about money, because the way I took it was that Hermosillo wanted Danny to be involved in it and Danny had told him that he wouldn’t kill anybody for money.”
On April 23, Alvarado and Hermosillo drove around town so that Hermosillo could be seen by the “cops.” During their drive, Hermosillo explained to Alvarado how he had killed Keeley. He said he watched Keeley sleep, shoved a sandwich in his mouth, sat on his chest, and smothered him. At trial, Alvarado testified that Hermosillo said he had laid on top of Keeley with a pillow. Later, Hermosillo told three other friends that he had killed Keeley. After explaining to Rita Corbin that he had put a sandwich in Keeley’s mouth and a pillow over his face, Hermosillo said “he was just joking.” Dougan thought Hermosillo was drunk when he told Dougan of killing Keeley with a sandwich and pillow. Janice Dougan did not take Hermosillo seriously when he told her, the day after Keeley’s death, that he had killed Keeley. She testified that “it was like he was joking.”
On the afternoon of April 23, Hermosillo spoke with his neighbor Brenda Tucker. Hermosillo said he had heard that Keeley was taken to the hospital. He asked Tucker how Keeley was doing. When Tucker told him that Keeley had died the night before, Hermosillo looked surprised. According to Hermosillo, Keeley had stomped on the floor around 2 or 2:30 a.m. Hermosillo had gone upstairs to Keeley’s apartment. Keeley said he was hungry, and Hermosillo fixed him a TV dinner and gave him a sandwich.
Hermosillo’s use of Keeley’s personal checks was discovered during the investigation. Dougan testified that Hermosillo took checks from Keeley, handed them to Dougan, and then Hermosillo and Dougan would take the checks to nearby Sterling, Kansas, to cash them at a grocery store. Hermosillo and Dougan would split the money. Alvarado also testified that Hermosillo was “borrowing” money from Keeley and cashed a check from Keeley’s account at a bank in Sterling.
Following his arrest, Hermosillo was interviewed by two officers. Before the interview, he was given Miranda warnings. He waived his rights and agreed to talk to the officers. When the police asked Hermosillo about forging checks, he denied committing forgery. He said he had received one check from Keeley and thought his friends Alvarado and Dougan had each been given a Keeley check. He said Keeley let him borrow the money. Five out of six checks contained Hermosillo’s fingerprints; Keeley’s fingerprints were not found on the checks.
During his interview by the officers, which lasted about 3 hours, Hermosillo provided inconsistent statements and changed his stoiy repeatedly. He first said that at 10 p.m. on April 22 he went upstairs to Keeley’s apartment and made Keeley a TV dinner. He said he returned to his apartment, and Keeley pounded on the floor, so he went back upstairs. Keeley asked for water and said he was still hungry. Hermosillo said Keeley did not want another TV dinner, so he went downstairs to get the half of a sandwich he had not eaten and gave it to Keeley. Later, Hermosillo changed his story by saying he heard Keeley coughing and wiggling around. When he went upstairs, he thought Keeley was asleep, but “he [Keeley] looked weird.” Hermosillo continued to change his stoiy. He said he went upstairs, saw Keeley was asleep, touched him and yelled at him. Then he told officers that he went upstairs and found Keeley dead. At trial, the taped interview was played for the jury.
DISCUSSION
Sufficiency of Evidence
We first take up Hermosillo’s insufficiency of the evidence claim. Our standard of review is whether, after review of all the evidence, viewed in the light most favorable to the State, we are convinced that a rational factfinder could have found Hermosillo guilty of premeditated murder beyond a reasonable doubt. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
The State introduced no evidence of a struggle, strangulation, or cuts and bruises. However, the evidence showed that Keeley was in poor health. He suffered from malnutrition, alcoholism, alcoholic cirrhosis, anemia, and atria fibrillation or rapid heartbeat. When Alvarado was asked whether Hermosillo said Keeley was able to fight during the killing, Alvarado responded, “No, [Keeley] didn’t struggle very much.” Forensic evidence showed that Keeley died of asphyxiation secondary to obstruction of the airway.
Circumstances that may lead to an inference of premeditation include: “(1) the nature of the weapon used, (2) a lack of provocation, (3) the defendant’s conduct before and after the killing, (4) threats and/or declarations made by the defendant before and after the killing, and (5) lethal blows inflicted after the deceased was felled and rendered helpless.” State v. Jamison, 269 Kan. 564, 572, 7 P.3d 1204 (2000).
Hermosillo points out that during closing arguments, the prosecutor argued that James Dougan and Alvarado testified that he “told them that he had plans to kill Mr. Keeley.” He notes that Dougan’s testimony did not rise to that level of certainty. When asked if Hermosillo had ever talked to him about killing Keeley before Keeley’s death, Dougan said there might have been a time, but he was not “sure on exact date or what.” When asked if Hermosillo told him that he had thought about killing Keeley because Keeley was “loaded,” Dougan said he was not sure. When asked if he remembered a conversation of this nature, Dougan said, “There might have been a time, but I’m not positive.” Dougan suggested during his interview with police that Hermosillo told him he wanted to kill Keeley because Keeley was “loaded.”
The record shows that Hermosillo told Alvarado that he would be doing Keeley a favor by killing him. Hermosillo also told Alvarado that he “just felt like he’d want to do him in” like Dr. Kevorkian. During Alvarado’s interview with police, Alvarado stated that a few days before Keeley’s death, Hermosillo said “the old man is dying and he would like to end it for him.”
Hermosillo’s statements made after the killing show premeditation. The morning after the killing, Hermosillo told Alvarado about what he had done. He told Alvarado that he crossed Keeley’s arms and watched over him as he slept. When Keeley gasped for air, Hermosillo shoved the sandwich into Keeley’s mouth and then smothered him with a pillow.
Before the murder, Hermosillo had been taking money from Keeley’s checking account by forging Keeley’s signature on checks. James Dougan testified that Hermosillo took the checks from Keeley. Some checks were made out to Dougan, and Hermosillo and Dougan would cash them. They would split the money between them. When asked if he ever saw Hermosillo write out any of the checks, Dougan said there might have been one time, but he was not positive. On redirect examination, he denied seeing the victim write any of the checks. When, asked if Hermosillo had ever told him not to worry about the checks anymore, Dougan said he did so about 1 to 2 weeks after Keeley was killed. A forensic scientist with the Kansas Bureau of Investigation testified that Hermosillo’s fingerprints were found on five of the six checks. Keeley’s fingerprints were not found on any of the suspect checks. Another expert testified that upon examination of the handwriting on the checks, there was a strong indication that Keeley did not sign the checks.
The evidence, considered in the light most favorable to the State, shows that a rational factfinder could have found that the act of killing Keeley was one that Hermosillo thought over beforehand and then carried out. Sufficient evidence supports the premeditated murder conviction.
Failing to Instruct the Jury on Second-degree Intentional Murder
Next, Hermosillo argues that the district court erred by failing to instruct the jury on the lesser included offense of second-degree intentional murder. This contention lacks merit. Hermosillo neither requested a second-degree intentional murder instruction nor objected to its omission. During the jury instructions conference, the judge said: “There are no lesser included charges instructed upon nor requested. And I don’t think there’s any evidence from which a lesser included charge could be arrived at.” When asked whether he was requesting any other instructions, defense counsel said, “No, I have to . . . concur with the court’s conclusions.”
Second-degree intentional murder is a lesser included offense of first-degree intentional murder. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 929 (1987). No party may assign as error the failure to give an instruction, including a lesser included crime instruction, unless the party objects before the jury retires. The objecting party must distinctly state the matter objected to and the grounds for the objection, unless the failure to give the instruction was clearly erroneous. K.S.A. 2000 Supp. 22-3414 (3); State v. Gould, 271 Kan. 394, 401, 23 P.3d 801 (2001). Thus, we ask whether the failure to give the instruction is clearly erroneous. Instructions are clearly erroneous only if we are firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Henry, 263 Kan. 118, 131, 947 P.2d 1020 (1997).
Without identifying any evidence to support his argument, Hermosillo asserts that the jury could have concluded that he intentionally killed Keeley but did not premeditate the killing. As the State aptly observes, this case did not contain evidence of second-degree murder. The defense theory at trial was that Keeley died of natural causes and that Hermosillo was the “teller of tall tales.” The State presented evidence that before Keeley’s murder, Hermosillo talked to friends about killing Keeley. Alvarado testified that Hermosillo told him that “he crossed his arms and well, he waited above [Keeley] when, he watched him sleeping. [Then] he gasped for air . . . and [Hermosillo] shoved a sandwich in his mouth and sat on his chest and smothered him.” Failure to give such an instruction was not error.
Hermosillo’s Statements Made During a Custodial Interrogation
Hermosillo contends that the district court erred by denying his motion to suppress his recorded interview. He argues that his statements should have been suppressed because he failed to give a voluntary, knowing, and intelligent waiver of his Miranda rights. We disagree.
Our standard of review is whether the district court’s ruling was supported by substantial competent evidence. See State v. Minor, 268 Kan. 292, 297, 997 P.2d 648 (2000). In determining whether the accused’s confession is voluntary, we look to the totality of the circumstances. State v. McCorkendale, 267 Kan. 263, 270-71, 979 P.2d 1239 (1999).
At the suppression hearing, the district court heard the testimony of police Sergeants Alvin Sowers and Ron Meredith. About 2 hours after his arrest, the officers began their interview with Hermosillo. First, Hermosillo was read his Miranda rights. Sergeant Sowers testified that Hermosillo acknowledged that he understood each of those rights. He signed a waiver showing that he wanted to speak to the officers. Hermosillo told Sergeant Sowers that he knew about the Miranda rights because he watched television. According to Sowers, Hermosillo did not request an attorney and never asked to stop the questioning. About every hour, the officers took a little break. When asked at trial if Hermosillo had been intoxicated or on drugs, Sowers said, “No.” Sergeant Meredith testified that Sowers had accurately portrayed what had occurred in the interrogation room.
Hermosillo emphasizes that on cross-examination, Sergeant Sowers admitted that he did not find out about Hermosillo’s educational level. However, on direct examination, Sowers agreed that he was able to have a “normal conversation” with Hermosillo. Hermosillo also notes that Sowers did not ask whether he was under the influence of alcohol. Sowers testified, however, that based on his experience he did not smell alcohol or notice anything that would give a reason to believe Hermosillo was under the influence.
Sowers also testified that Hermosillo’s interview was recorded. He said he did not believe Hermosillo knew the recorder was on until the end of the interview. On cross-examination, Sowers was asked his reason for not telling Hermosillo that the interview was being taped. He said, “Well, [we] seem to get a better statement off people when they don’t think they’re being recorded. A better interview may be more truthful.” Sowers said he thought that during the interview, Hermosillo saw the recorder. The transcript of the interview shows that Hermosillo asked the officers if they “got it” on their “tape recorder.” Sergeant Meredith said, “That’s a radio.” Hermosillo replied, “Oh, thought it was a tape recorder.” Later, Hermosillo said, “You guys got your recorder going or something like that, because I don’t want to say something then change it and then get in trouble for saying something dumb.” Sowers responded, “You aren’t going to say something dumb.” Hermosillo replied, “Well, to me, it’s going to sound stupid.” At the end of the interview, he requested that the officers turn off the recorder, and the officers complied.
Defense counsel challenged the introduction of Hermosillo’s statements, claiming that they were not voluntary because he did not know the statements were being recorded. On appeal, Hermosillo argues, without authority, that the officers’ failure to tell him about the recorder was a “tactic,” calling into question the voluntariness of his statements. Hermosillo relies on United States v. Palmer, 203 F.3d 55 (1st Cir.), cert. denied 530 U.S. 1281 (2000). Palmer does not support his contention. In Palmer, the prosecutor, during closing argument, made reference to his own personal beliefs and appealed to those of the jury, saying, “You do it. I do it,” to explain a detective’s decision to record Palmer’s confession but not the entire custodial interrogation. 203 F.3d at 58. Palmer argued that the prosecutor’s “You do it,” “I do it” remarks during final argument violated his due process rights. The First Circuit Court of Appeals, acknowledging that the prosecutor’s remarks indirectly vouched for the detective witness, affirmed Palmer’s convictions. 203 F.3d at 65.
The district court here found that Hermosillo made the statements “knowingly and that there was no evidence of coercion, threat or intimidation to get him to talk to the officers.” We agree.
Prosecutorial Misconduct
Finally, Hermosillo contends that the prosecuting attorney committed misconduct during opening statements and closing arguments, depriving him of his constitutional right to a fair trial. We disagree.
Hermosillo made no objection to the prosecutor s opening statements at trial. However, the contemporaneous objection rule does not apply to opening statements because it is impossible to foresee which comments counsel might fail to establish through the evidence at trial. “Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which the prosecutor does not attempt to prove at trial.” State v. Ruebke, 240 Kan. 493, 503-04, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
The following remarks were included in the prosecutor’s opening statement:
“The defendant crept up to Mr. Keeley bizarrely armed with a sandwich in one hand and a pillow in the other. The defendant then shoved a sandwich in Mr. Keeley s mouth, covered his face with a pillow and laid on him until there was no more life in Mr. Keeley. It was all over in a short period of time. The defendant got off Mr. Keeley and the body twitched.”
Hermosillo asserts that the prosecutor “had to know that there was no way he could prove those facts.” However, a review of the record shows that four witnesses, Rita Corbin, James Dougan, Janice Dougan, and Danny Alvarado, testified that Hermosillo told them that he killed Keeley. Three of those witnesses, Rita Corbin, James Dougan, and Danny Alvarado, testified that he told them he killed Keeley with a sandwich and a pillow. Hermosillo also told officers that he brought a sandwich to Keeley. Although it does not appear that the evidence showed that the body “twitched,” Hermosillo has not shown prejudice or bad faith by the prosecutor. As often occurs in trial, the proof a party anticipates does not always materialize. See State v. Campbell, 210 Kan. 265, Syl. ¶ 9, 500 P.2d 21 (1972). A prosecuting attorney is given reasonable latitude in stating to the jury the facts he or she proposes to prove. See State v. Jackson, 222 Kan. 424, 430-31, 565 P.2d 278 (1977).
We also note that the jury was instructed:
“Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded.”
Hermosillo failed to object to the prosecutor s closing argument. Generally, we do not apply the plain error rule. Reversible error normally cannot be predicated upon a complaint of prosecutorial misconduct during closing arguments where no contemporaneous objection is lodged. However, if the prosecutor’s statements rise to the level of violating either a defendant’s right to a fair trial or his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. State v. Finley, 268 Kan. 557, 571, 998 P.2d 95 (2000).
During his closing, the prosecutor argued that there were at least three possible motives for the commission of the murder:
(1) “The defendant didn’t have a job, he needed money, he was stealing from Mr. Keeley, he killed him to cover it up.”
(2) “[M]aybe a delusional sense of misguided purpose such as Dr. Kevorkian, or at least those were the words the defendant used to Danny Alvarado and to the police officers.”
(3) “He did it just for the thrill of it. . . . And lastly, it could be a combination of any of these three why the defendant killed Mr. Keeley.”
The State contends that the above statements were based upon the evidence presented at trial. Regarding the theory of greed, Dougan testified about Hermosillo’s taking Keeley’s checks and cashing them. One or two weeks after Keeley’s death, Hermosillo told James Dougan not to worry about the checks anymore. Rita Corbin testified that Alvarado told her that Hermosillo had been talking about killing Keeley and that it had something to do with money. Regarding the theory of a mercy killing, Hermosillo talked about doing Keeley a “favor” by killing him and used the term “Kevorkian” to Alvarado. He told police that he was not into killing “old people” like “Dr. Kedevorkian [sic.].” Regarding a, “thrillkill,” Sergeant Sowers testified that he looked at these motives, including whether Hermosillo may have killed Keeley just for the thrill of it.
Hermosillo has not shown the prosecutor’s closing remarks to be improper. The remarks did not prejudice the jury against Hermosillo and deny him a fair trial. See State v. Campbell, 268 Kan. 529, 539, 997 P.2d 726, cert. denied 531 U.S. 832 (2000).
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The opinion of the court was delivered by
Six, J.:
Defendant Vaughn Flournoy appeals his convictions for first-degree premeditated murder of his grandmother, Lillian Thomas, and battery of his girlfriend, Cheryl Key. K.S.A. 21-3401(a); K.S.A. 2000 Supp. 21-3412. The district court imposed a hard 40 sentence, finding that the murder was a crime committed for the purpose of receiving money or other thing of monetary value and was committed in an especially heinous, atrocious, or cruel manner. K.S.A. 21-4636(c), (f). One mitigating circumstance, no significant history of prior criminal activity, was found. See K.S.A. 21-4637(a).
Our jurisdiction is under K.S.A. 22-3601(b)(l) (an appeal of a conviction resulting in an off-grid crime receives review by this court).
The issues for review, besides claims of error in imposing the hard 40 sentence and prosecutorial misconduct during closing argument, are whether the district court erred by: (1) admitting a witness’ prefiminary hearing transcript into evidence, (2) allowing testimony reciting excerpts from Flournoy’s diaiy, (3) permitting rebuttal testimony regarding Flournoy’s statements and tests performed during a competency exam, and (4) failing to instruct the jury on Flournoy’s theory of defense.
We affirm Flournoy’s convictions, finding no reversible error. However, we find insufficient evidence to support the K.S.A. 21-4636(f) aggravating circumstance (heinous, atrocious, or cruel), vacate the hard 40 sentence, and remand for resentencing.
FACTS
On the morning of November 26, 1997, Flournoy walked into the Kansas City, Kansas, Police Department and turned himself in for killing his grandmother Lillian Thomas. Detective Clyde Blood took Flournoy’s statement. Blood said Flournoy was “nervous, obviously, but cooperative the whole time.” Flournoy could not remember everything that happened, saying, “[M]y wife had told me the other night I snapped, I killed my grandmother. ... I told them I just wanted to know if it was true. If it’s true I’m here. If it’s not, I’m sorry for wasting your time.” Lab tests showed that Flournoy’s blood contained Benzoylecgonine, which is metabolized cocaine, and caffeine. Forensic pathologist Dr. Eric Mitchell testified that Thomas suffered two gunshot wounds in the hairline of her scalp, one in her right front chest, one in her left front chest, and one on her right arm forearm. Dr. Mitchell said the shooter was 2 or 3 feet away from Thomas when the shots were fired. All of the shots except the wound to the arm could have been fatal, and all shots most likely took place in less than 1 minute.
During Flournoy’s interview, the police asked him why he hurt Thomas. He said, “She was going off on my wife [girlfriend Cheryl Key] and then I know nothing else.” He said that he and Key were upstairs talking. He was feeling “unstable,” and they were discussing his feelings. Flournoy said Thomas called them downstairs and “started yelling how stupid and ignorant” Flournoy and Key were. The next thing he remembered was slamming into a dumpster in Thomas’ car.
Flournoy said he used Thomas’ .38 mm revolver, but he did not remember how he got the gun. He could not remember how many times he shot Thomas, how far he was from her when he shot her, what part of her body he fired at, or what he had done with the gun. The gun was not found. Flournoy testified at trial.
Flournoy’s Trial Testimony
Flournoy explained that after age 12, he had lived with his grandparents for most of his fife. He moved out of his mother’s house because her boyfriends beat and molested his sister. He joined the U.S. Navy after high school graduation and served 3 years, eventually returning to live with his grandparents. He had migraines and blackouts in the past. His first wife and Key had both told him about blackouts he had suffered. He was told that he had punched a hole in the wall of his house, and once he attacked Key’s brother who had threatened him. The blackouts were brought on by “stress” and “arguments.” He tried to commit suicide twice in 1996.
Around May 1996, Flournoy worked 12-hour shifts at a casino and was stressed out. He “felt like [he] was losing control.” His mother took him to the Kansas University Medical Center, where he stayed for 12 hours. He kept a diary in which he wrote: “The same ole story of family freaking out on each other and me coming home in time to get cussed out and put out. This time the rage took over and I decided to get help or kill her [Thomas].” After leaving the medical center, he went to the City Union Mission for the Christian Life Program, where he met Key, who worked there as a cook. Flournoy apparently told Thomas that he would get counseling.
Regarding the day of the attacks, Flournoy testified that he remembered walking with Key and then the next thing he knew, he was getting up off the ground, and Key was telling him that he had attacked Thomas. He testified that Thomas yelled at him and told him that one day someone was going to blow his brains out, and she “started going off on Cheryl again.” Flournoy went into the kitchen. He testified that this was the last thing he remembered. Later, he walked with Key from a hotel to a bus stop and then bought beer and cocaine. Then next morning, he went to the police station.
Key’s Testimony
Key testified at the preliminary hearing. After the district court found her unavailable at trial, her preliminary hearing testimony was read into evidence. She had known Flournoy for 2 years and was his girlfriend. On the weekend of November 22, 1997, she stayed with Flournoy at Thomas’ house. On Monday, November 24, she and Flournoy went to the public library, where he looked for a book on “demonology.” Flournoy told Key that his mother introduced him to demonology when he was 9 years old and that he practiced it on his own for 9 years. They returned to Thomas’ house, watched television, shared a beer, and played cards.
Later that day, Flournoy and Key went shopping. While they were walking, Flournoy suddenly grabbed Key, lifted her off the ground, threw her down, and punched her all over, leaving both eyes black. After he stopped, the police arrived. Key did not press charges. Key and Flournoy returned to the house.
After the incident, Key said that Thomas told her that she (Key) did not deserve “to be hit” and “was better than that.” Then Flournoy joined them, and the three talked for awhile. After Key went upstairs,' she overheard Flournoy ask Thomas about “Sister Rickie.” She heard Thomas say that she did not know what he was talking about and to “get out of my face with that mess.” Key thought Sister Rickie was a pastor at a church, but she did not know which one.
As Flournoy came upstairs, he told Key, “She [Thomas] tells me f-my mother and then she tells me love my mother.” Then, he dropped down on his knees in front of Key and grabbed her shirt, saying “[P]lease tell me about your God, please tell me about your God.” Key said she pointed to a Bible and said, “Read your Bible.” He then lit a cigar and sat cross-legged on the floor. Thomas started calling him, but he did not move. She asked him if he heard Thomas, and he said, “Yes,” but he did not move. He just stared straight ahead. When asked by defense counsel if Flournoy appeared to be in a trance, Key said, ‘Tes.”
Key went back downstairs to talk to Thomas. Thomas eventually hollered for Flournoy again. He came downstairs, and Thomas “started fussing at him” and asked why he and Key were fighting. Flournoy asked her what she was talking about. A few minutes later, he called out to Key in a “tone of voice ... so different.” Key saw Flournoy standing by the kitchen sink with a knife in his hand. In a loud voice, Key told Flournoy to put down the knife.
Key sat in the living room in a chair next to Thomas, and Flournoy sat at the kitchen table. After a while, Thomas “started hollering at [Flournoy] again” for about 45 minutes to an hour. Thomas said Flournoy needed to get his fife together and that he could not be a good husband for Key. Key said that Flournoy came into the living room with a gun in his right hand, with his arm at his side. She jumped up, stood in front of him, and said, “Don’t do that, put that up.” Flournoy did not say anything.
He raised the gun over Key’s shoulder and pulled the trigger. After the first shot, Key told him to stop and ran into the kitchen. Flournoy said, “I have to put her out of her misery.” Key heard two or three shots. Then, Flournoy played with Thomas’ hair and “talked to her like she was still there.” He told Key to go upstairs and get her purse and jacket. He showed her a small knife and said, “I’m going to take this with me, and . . . when the police catch me I’m going to shoot myself and I want to be buried with my knife.”
Flournoy went through Thomas’ bedrooms and threw things around for the next 30 minutes. He took a drawer of pennies, a file box, and a jewelry box. He told Key to give the file box to a specific attorney, but Key could not remember the attorney’s name. They left the house and walked to the car. Flournoy said, “Oh, I lost mamma’s [Thomas] keys. . . . Mamma is going to be pissed I lost her keys and I can’t find them.” He broke one car window with a hand weight, but then he realized he had the keys. They drove around the block and returned to the house. They stayed a few minutes and then drove around Kansas and Missouri for 5 or 6 hours. Flournoy stopped at a gas station, 2 or 3 banks, and a friend’s house in an attempt to exchange the pennies for paper currency.
Flournoy did not start talking to Key until several hours into their drive. She asked him if he remembered what he did and told him that he needed to turn himself in. She said Flournoy looked “kind of puzzled” and said he did not remember.
When Key told Flournoy what had happened, he said he would turn himself in, but first he wanted to watch the news to see what was going on. They checked into a hotel, and then Key went home on a bus. Flournoy said he would let her leave because she had kids that needed her.
DISCUSSION
The Hard 40 Sentence
We first take up Flournoy’s assertion that the district court erred by imposing a hard 40 sentence. K.S.A. 21-4635; K.S.A. 21-4636. He argues that there was insufficient evidence to support the aggravating circumstances upon which the district court relied. We agree with Flournoy’s argument as it applies to 21-4636(f), the “especially heinous, atrocious or cruel manner” aggravating circumstance.
Our standard of review under K.S.A. 21-4636 is whether, after viewing all the evidence 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. State v. Murillo, 269 Kan. 281, 287-88, 7 P.3d 264 (2000).
K.S.A. 21-4636 lists the aggravating circumstances that shall be considered. The district court found that two aggravating circumstances existed. The crime was committed (1) to receive money or any other thing of monetary value and (2) in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(c), (f). The district court reasoned that following the murder, Flournoy took “many valuables from the house” and attempted to sell some of the items to obtain money for himself. The district court also found one mitigating circumstance because Flournoy had no significant history of prior criminal activity. See K.S.A. 21-4637(a).
Flournoy looks to four of our cases in which we held that the defendant committed a crime for the purpose of receiving money or something of value. He argues that those cases are distinguishable from his case. See Murillo, 269 Kan. at 289 (Murillo committed murder while attempting to find cocaine.); State v. Vontress, 266 Kan. 248, 249, 970 P.2d 42 (1998) (Vontress and another man went to the victim’s house “looking for drugs and money.”); State v. Cromwell, 253 Kan. 495, 513, 856 P.2d 1299, modified by State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993) (one victim’s purse and one victim’s billfold and checkbook were missing); State v. Kingsley, 252 Kan. 761, 764, 851 P.2d 370 (1993) (Kingsley testified that he and his wife went to the victim’s house to “knock her out, tie her up, and take her money.”)
Key testified that Flournoy took a number of items out of the house and put them in the car. Officers at the scene noted that dresser drawers had been pulled out and items thrown around. Some of the bedrooms appeared to be “ransacked,” like someone was looking for something. The file box that Flournoy gave to Key contained significant financial information and several savings bonds. Flournoy stopped at a friend’s house and at several local banks attempting to cash the stolen pennies. Also, evidence showed that if Flournoy was exonerated for the murder, he stood to be the executor of Thomas’ estate. Flournoy’s sister testified that Flournoy “knew he was going to get everything.” She said just before Thomas’ death, Thomas had told Flournoy that she was going to remove him from the will as the executor, and he responded that he was going to get the house anyway.
We conclude that there was sufficient evidence to show that the murder was committed for the purpose of receiving money or any other thing of monetary value.
We now turn to K.S.A. 21-4636(f), the heinous, atrocious, or cruel circumstance. The district judge said:
“I believe it is more heinous and more atrocious when it is done by an individual against someone who has provided them a lot of love, affection and care over the time of their life. That is much more atrocious and heinous in my view than it would be had you killed someone in a card game or for any other reason, out on the street, perhaps someone you didn’t know. To me, that is very atrocious and very heinous. I might also add that it appears to me that you were very intent on accomplishing the end results here, that was the death of your grandmother. You shot her twice and after a few seconds you shot her again in order ... ‘to put her out of her misery.’ That was the testimony. This wasn’t a case where you got very mad and one shot was fired . . . out of a gun and it hit your grandmother. There were four shots into her body. You intended to kill her, you did kill her. And she had provided a lot of love, care and affection for you over the term of your thirty-two years of life. That makes this as a special heinous, atrocious and cruel crime.”
The State argues that the relationship of Flournoy and Thomas was relevant in analyzing the manner in which the murder took place. The State concedes, however, that the biological relationship alone cannot serve as a basis for a hard 40 sentence. This contradiction advanced by the State to support its position is puzzling.
Flournoy counters that it was irrelevant that the victim was his grandmother. He cites State v. Follin, 263 Kan. 28, 947 P.2d 8 (1997), where Follin, a father, was convicted of the stabbing deaths of his 3-and 4-year-old daughters. The State seemed to suggest that the “tender ages of the victims contribute [d] to the atrocious manner in which die murders were committed.” 263 Kan. at 51. We commented that the plain language of the statute did not support such a suggestion. We said: “The focus is on defendant’s conduct, on his actions as he killed the victims. It is not on the nature of the victim.” 263 Kan. at 51. In holding that the killings were not “especially heinous, atrocious, or cruel,” we said: “FoDin’s conduct [was] more susceptible to being interpreted as the perpetrator’s avoiding infliction of serious anguish or physical abuse before the victim’s death.” 263 Kan. at 51.
We have said: “All murders are heinous, atrocious, and cruel. The legislature, by using the phrase ‘in [an especially] heinous, atrocious, or cruel manner,’ meant that the heinous, atrocious, or cruel manner must be in a special or unusual degree, to an extent greater than in other cases.” State v. Cook, 259 Kan. 370, 403, 913 P.2d 97 (1996). Shooting deaths are generally not considered committed in an especially heinous, atrocious, or cruel manner. State v. Conley, 270 Kan. 18, 28, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
We recognized an exception to the rule in State v. Alford, 257 Kan. 830, 838, 896 P.2d 1059 (1995). We found that the Alford facts supported a finding that the murder was heinous and cruel. Alford entered a Burger King kitchen waving his gun. He chased the victim into the lobby of the restaurant and shot her twice. He forced the victim back into the kitchen, and when she attempted to escape, he shot her again. Finally, he dragged her around the comer of the kitchen and continually tried to fire the jammed gun. After a long series of attempts to fire the gun, Alford fired the final two shots. 257 Kan. at 838.
In State v. Brady, 261 Kan. 109, 123, 929 P.2d 132 (1996), a shooting death case, we also upheld a hard 40 sentence (abrogation of the hard 40 beyond a reasonable doubt standard of review recognized in Vontress, 266 Kan. at 258). Both victims in Brady were forced to he face down on the floor for 15 minutes not knowing what would happen, while Brady paced the room holding the gun.
In Cook, 259 Kan. 370, the victim was found in his bed. The coroner testified that the victim was shot once in the chest and once in the back. The district court imposed a hard 40 sentence after a jury found that Cook killed the victim in a particularly heinous, atrocious, or cruel manner. On appeal, we held that post-death mutilation could not be considered an aggravating circumstance. 259 Kan. at 401. Regarding the gunshots, we looked to the exceptional circumstances in Alford. In Cook, the State contended that based on his wounds, the victim either faced Cook and turned away to avoid being shot, or was shot in the back and turned to see who shot him. We concluded that a rational factfinder could not find that the shooting was committed in a special or unusual degree or to an extent greater than in other cases; thus, Cook’s hard 40 sentence was inappropriate. 259 Kan. at 403.
The testimony here, when construed in a manner favorable to the State, was that Flournoy came into the hving room with a gun in his right hand, with his arm at his side. Key, seeing only the tip of the gun, jumped out of her chair and stood in front of Flournoy, telling him, “[Djon’t do that, put that up.” When asked if Thomas saw the gun, Key said, “I’m sure she did.” Neither Thomas nor Flournoy said anything. Flournoy stood in front of Key and fired the gun over her shoulder. After the first shot, Key ran to the kitchen and told Flournoy to stop. He said, “I have to put her out of her miseiy” and fired again. Key testified that Flournoy called her out to the living room and asked her to sit in the chair next to Thomas. She heard a “kind of . . . grunting noise” from Thomas. A forensic pathologist testified that Thomas suffered five gunshot wounds. All of the shots most likely occurred in less than 1 minute.
Unlike the victims in Alford and Brady, Thomas was not chased down, nor forced to lie on the floor awaiting death. The shooting took place within 1 minute. As in Cook, we conclude the evidence does not support a finding that the murder was committed in an especially heinous, atrocious, or cruel manner.
With the elimination of the “heinous and cruel” aggravating circumstance, our inquiry shifts to the balance between the remaining aggravating circumstance of receiving money or something of value with the mitigating circumstance of no significant history of prior criminal activity.
The combination of aggravating and mitigating circumstances here does not produce the overwhelming disparity presented in State v. Bailey, 251 Kan. 156, 174, 177-78, 834 P.2d 342 (1992) (Forensic evidence established major trauma to all parts of the victim’s body. No estimate of how many times victim had been stomped upon. Blood in multiple locations established a lengthy period of assault and a slow death.) See also State v. Livingston, No. 86,230, decided this date. (19 blows, primarily to the skull of the victim, with a claw hammer;) State v. Brown, No. 84,606, de cided this date (eight or nine blows with a claw hammer). With one of Flournoy s aggravating circumstances removed from the balance, the circumstances must be reweighed. Such reweighing must be done by the district court. K.S.A. 21-4635(c). State v. Coleman, 271 Kan. 733, 742, 26 P.3d 613, (2001); State v. Spain, 263 Kan. 708, 725, 953 P.2d 1004 (1998). We vacate the hard 40 sentence and remand to the district court for reweighing of the one remaining aggravating circumstance and the mitigating circumstance.
Prosecutorial Misconduct During Closing Arguments
Flournoy contends that he was deprived of his constitutional right to a fair trial by the prosecutor’s misconduct during closing argument.
Flournoy acknowledges that he made no objection to the prosecutor’s comments at trial. Generally, we do not apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of prosecutorial misconduct during closing argument where no contemporaneous objection is lodged. State v. Gould, 271 Kan. 394, 403, 23 P.3d 801 (2001). See K.S.A. 60-261 (harmless error); State v. Holmes, 272 Kan. 491, 498, 33 P.3d 856, 861 (2001) (“The Kansas harmless error statute encompasses the federal harmless error and plain error rules.”) The prosecutor’s remarks here do not rise to the level of violating either Flournoy’s right to a fair.trial or his Fourteenth Amendment right to due process.
During closing arguments, the prosecutor said:
“She [Thomas] was frank about her opinion of what had happened, and he didn’t like that. But later on [Thomas] let it go. She changed her clothes, she got out of her meeting clothes and . . . settled in for the evening. After eating supper that night, she watched a little bit of television, and later in the evening got herself a bowl of ice cream and a glass of water and sat down in her chair she normally sits in and settled in for a little late night television.
“She let it go, but Vaughn wouldn’t let it go. .. .
“And then sometime after midnight, Vaughn’s anger finally reached his peak, after stewing for hours about it. He went to the kitchen and he grabbed a butcher knife, and at that point he intended to do harm to his grandmother. But for the action of Cheryl Key, when she saw him, that alarmed her, she knew he wasn’t just in there fixing something for dinner. They already had dinner. And his actions upset her so much that she got out of her chair and went in to talk to him out in tifie kitchen and calmed him down; and it wasn’t Vaughn that put the knife back, it was Cheryl who put it back after a few minutes.’’ (Emphasis added.)
First, Flournoy argues that the evidence shows that Thomas did not “let it go”; rather, she kept talking or yelling at Flournoy.
The State asserts that a fair reading of the record shows that at the time of the murder, things had settled down in Thomas’ mind. According to the State, the prosecutor merely drew from this evidence an inference that Thomas had “let it go” that evening and that Flournoy’s actions showed he had not.
Second, Flournoy contends that the prosecutor misrepresented evidence regarding the knife in the kitchen when she said Key replaced the knife. The State concedes that Key testified that Flournoy put the knife away. The error about who put the knife away, had little, if any, likelihood of changing the result of the trial. See State v. Finley, 268 Kan. at 557, 571-72, 998 P.2d 95 (2000).
Third, Flournoy claims that the prosecutor improperly embellished what happened moments before the gun was fired. The prosecutor said:
“We know that she was sitting there watching television so she had to see him. Imagine what’s going through her mind as she sees her own grandson, the one she has believed in for so many years stand there with a loaded gun, her own gun, looking at her with it. We know that he must have killed her immediately or held her at gunpoint and threatened her not to move, because she’s still sitting in the same chair as she was in as she sat there and watched television. Maybe she didn’t have time to get up and run away or maybe just horror that is going through her mind, maybe the shock of it all paralyzed — all the fear paralyzed her. Did she plead with him, did she beg him not to do this ? I guess only Vaughn would know that.” (Emphasis added.)
Flournoy explains that there was no evidence that he “held her at gunpoint and threatened her not to move,” nor was there any evidence that Thomas pleaded with Flournoy. Key testified that Thomas said nothing and after the first shot Flournoy said he had to put her out of her misery.
Flournoy contends that these comments were inflammatory and invoked the emotions of the jury. Citing cases from other states, he reasons that it is improper for a prosecutor to state his or her personal beliefs regarding the victim’s thoughts or to create an emotional imaginary script. See Urbin v. State, 714 So.2d 411, 421 (Fla. 1988) (prosecutor went far beyond the evidence in emotionally creating an imaginary script demonstrating that the victim was shot while “pleading for his life”); State v. Moore, 81 Ohio St. 3d 22, 34, 689 N.E. 2d 1 (1998) (prosecutor’s statements about victim’s thoüghts before death were improper).
The State points out that the prosecutor did not tell the jury that there was evidence of these actions. The State contends that the evidence supported such inferences. The State notes that Key said she was sure the victim noticed the gun before she died. The evidence showed that Thomas was shot to death while sitting in her chair. There was no evidence that she got up and ran to protect herself. In looking at the closing arguments surrounding the comments, it appears that the prosecutor was emphasizing the fact the Thomas remained in her chair.
The remarks concerning Thomas’ thoughts were outside the scope of the evidence presented and, therefore, were improper. However, the error had little, if any, likelihood of changing the result of the trial. See Finley, 268 Kan. at 571-72.
Fourth, Flournoy argues that the prosecutor committed misconduct when she said, “[Thomas] raises her arm in probably self-defense, the gun being aimed at her, but her arm was no shield with that .38 Special. It went right through her arm.” Dr. Mitchell, the forensic pathologist hypothesized that the bullet lodged in Thomas’ right front chest may have traveled through her arm before hitting her chest. He could not say with certainty that Thomas had her arm or hand up during the shooting. As the State points out, the prosecutor’s remark was based upon this evidence. There is no error.
Fifth, Flournoy takes issue with the following remarks made by the prosecutor:
“Vaughn is not a stupid person. Vaughn is a manipulator. Vaughn knows . . . how to say the right thing to manipulate the facts to benefit himself. He’s a control freak, and he hates to be told what to do.”
Flournoy argues that there is no evidence that he was a “manipulator” and “control freak.” He contends that such comments were meant to inflame the jury.
The State counters that these were reasonable inferences, drawn from the physical evidence and testimony from the trial. It notes that Flournoy’s mother agreed that he would say anything to save himself. Flournoy has shown no error in these remarks.
Sixth, Flournoy takes issue with the prosecutor’s following comments:
“Vaughn wasn’t crazy when this happened. There are some people out there in this society who kill and he is one of those people. He did not have a mental defect. He has no mental disease. He’s been evaluated, he’s been trying to push this theory for a .. . long time. He actually has been evaluated twice at Lamed, so he couldn’t support his theory. He doesn’t have anything medically or psychologically wrong with him that would cause him not to remember what he did or not be able to form an intent to kill. He has nothing wrong with him physically, psychologically, medically that would prevent him from forming premeditation to kill someone. There are no problems that would cause him to have blackouts or this so-called problem he has, he absolutely has no history of it even when he was in the military or otherwise. The only blackout he has ever had was from drinking too much. . . . Why did he turn himself in? Well, maybe the guilt over it or maybe he thought he could get off on a lesser offense, maybe he thought you would all . . . believe the story, the diminished mental capacity.”
Flournoy observes that he did not raise the defense of mental defect or diminished capacity. He also contends that the district court erred in admitting the testimony of two Lamed State Hospital staff members, Dr. Fernando and Mr. Huerter. These questions are explored later in our opinion.
Regarding the “blackouts,” the only evidence of Flournoy’s experiencing them was his own testimony and that of Key concerning Flournoy’s attack of her brother. It appears that by her comments, the prosecutor suggested that Flournoy did not suffer a blackout on the night of the murder. Flournoy shows no error.
■ Seventh, Flournoy takes issue with the prosecutor’s following remarks:
“Now, this is a man that has been avoiding consequences all of his life for his actions. Blaming other people why he is the way he is. It’s time now that this one final act of killing his grandmother he doesn’t get away with. You all can find him accountable for his actions, he’s not going to get away with his actions this time. You all must convict him of first degree premeditated murder.”
Flournoy argues that the record does not show that he refuses to take responsibility for his actions. He observes that he went to the police station and confessed the crime, and he also supplied police with the keys to Thomas’ house. He also gave Thomas’ address and the only other witness’ name and address. The State asserts that at trial Flournoy denied the charges against him. The record shows that Flournoy claimed to have blacked out and said he did not remember committing the murder. There is no error in the prosecutor’s remark.
Finally, Flournoy asserts that the prosecutor erred by calling him a liar. The prosecutor agrees. We agree. Flournoy reasons that the error was compounded by the closing remarks. Here, the prosecutor’s comments were improper. However, the closing remarks on this subject were brief and did not rise to the level of the comments in State v. Pabst, 268 Kan. 501, 507, 509, 996 P.2d 321 (2000) (noting the ultimate conclusion as to any witness’ veracity rests with the jury). Considering the overwhelming evidence against Flournoy, the error had little, if any, likelihood of changing the result of the trial.
The Preliminary Hearing Transcript
Flournoy next claims that the district court erred when it found that Key was unavailable as a witness. Over defense counsel’s objection, Key’s preliminary hearing transcript was used as evidence at trial. The district court’s determination that a witness is unavailable to testify will not be disturbed on appeal absent an abuse of discretion. State v. Love, 267 Kan. 600, 609, 986 P.2d 358 (1999). K.S.A. 2000 Supp. 60-460(c)(2) allows “the use of preliminary hearing testimony in a trial of the same action if the declarant is unavailable at the trial and the adverse party had the right and opportunity to adequately cross-examine at the preliminary hearing.” State v. Zamora, 263 Kan. 340, 342, 949 P.2d 621 (1997).
Under K.S.A. 60-459(g)(4) and (5), a witness maybe unavailable when the witness is “absent beyond the jurisdiction of the court to compel appearance by its process” or “absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.” The standard for determining whether a witness is unavailable is whether there has been a good faith effort to obtain the witness’ presence at trial. The question of good faith effort turns on the totality of the facts and circumstances of the case. See Zamora, 263 Kan. at 342.
Flournoy’s position is that Key’s whereabouts were known; thus, the State did not use “reasonable diligence” in attempting to produce her for trial. During the trial, the prosecutor told the court that she had been unable to personally serve Key with a subpoena. The prosecutor moved the court for a finding of Key’s unavailability in order to introduce the preliminary hearing transcript. The State presented testimony from two investigators from the district attorney’s office. One testified that he first located Key in May 1998. He said the district attorney’s office had trouble getting Key to appear at the preliminaiy hearing. At the time she lived in Kansas City, Missouri. Her family brought her in for the hearing. Because of the nature of this case, the investigator wrote down Key’s date of birth, where she and family members lived, her social security number, and her place of employment. According to the investigator, for out-of-state witnesses such as Key, the district attorney’s office often “[goes] through the out-of-state witness act to secure a witness,” which is what the State did here.
In June 1999, two investigators attempted to find Key for the trial. One discovered that Key had moved and left no forwarding address. Key’s mother had died, so the investigator checked with other agencies to see where Key might have been living. He discovered places that Key had worked and got an address on Belfontaine in Missouri where she was receiving unemployment checks. He went to that address. Key was not there, but a woman told him she would be back later. He left a card and a message for Key to call him. He was told that Key did not have a phone number. The next day, he returned to the house, and he could hear people talking inside, but nobody would answer the door. He also went to the last known address of Key’s mother, but the house had been condemned by the city.
The investigators prepared out-of-state motions. A second investigator testified that he tried to locate Key and serve her with a subpoena to testify at trial. He mailed subpoenas to three addresses, but two of the subpoenas were returned undeliverable. After out-of-state witness paperwork was filed, the chief investigator for the Jackson County, Missouri, District Attorney’s office assisted in attempting to serve Key. A hearing was set in Jackson County, but investigators were unable to find her.
The second investigator went to Missouri to look for Key, going to four addresses. At the Belfontaine address he spoke to a young man who initially said Key did not five there, but then said that he knew her but did not know when she would be back. When the investigator returned to the house later that day, the front door was open, but when he started walking up the sidewalk, the front door slammed. He heard someone locking the door. He knocked, but nobody answered. The young man he had talked to earlier walked up to the front porch. He was “rude and guarded.” The investigator left his card and a subpoena and asked the young man to give them to Key.
The investigator also learned that Key had been issued a new driver’s license with the Belfontaine address on it. The investigator testified that the Missouri “SRS” gave him a phone number, which he called. He said the person who answered the phone was very “rude” and said they did not know Key and that she did not five there.
In addition, he also tried to track down Key’s brother. During the investigation, he encountered someone who knew her brother, and this person asked him about Flournoy. He also found Key’s cousin, who said he would try to contact Key. Later, the cousin told the investigator that Key did not want to be involved and “[tjhat’s why she is hiding.” Right before trial, the investigator stopped by the Belfontaine house another time and left a note and a subpoena with a young woman.
The State then asked that Key be found unavailable. Defense counsel proffered that he received a phone message from Key on June 18,1999. He had received a “family telephone number” from Flournoy, which defense counsel called. The lady who answered asked who was calling and then said that Key was not there. Counsel called again and left a message on an answering machine that had a greeting that said it was the “Key residence.” When defense counsel did speak to Key on the phone, she told him that nobody had attempted to contact her and that she did not know anything about the trial. She also said she did not want to testify.
The district court, considering the totality of the circumstances, found that the State: (1) knew of Keys whereabouts in Missouri, which was beyond the jurisdiction of the court, (2) was unable to serve a subpoena upon her, and (3) made a good faith effort to find Key. The district court held the requirements of K.S.A. 2000 Supp. 60-460 and K.S.A. 60-459 had been met and admitted Key’s preliminary hearing testimony.
Flournoy, relying on State v. Cook, 259 Kan. 370, 913 P.2d 97 (1996), State v. Bey, 217 Kan. 251, 535 P.2d 881 (1975), and Zamora, 263 Kan. 340, contends that the State failed to use “due diligence.” We disagree. Flournoy claims that his case is distinguishable from Cook and Zamora because, here, the State “knew” where Key lived. He also points out that there was no evidence that Key had promised to testify at trial or that she was a willing and cooperative witness. During cross-examination at the preliminary hearing, Key admitted that she did not want to be there. Under the totality of the circumstances, we affirm the district court’s finding of unavailability.
The Diary
Flournoy asserts that the district court erred in allowing his mother, Vivian Shannon, to testify regarding an entry in his diary. He challenges the diary entry on the ground that it is more prejudicial than probative. He claims a violation of his right to a fair trial under the Fourteenth Amendment. The admission or exclusion of evidence is a matter of judicial discretion and should not be disturbed on appeal unless we find an abuse of discretion. State v. Whitesell, 270 Kan. 259, 276, 13 P.3d 887 (2000). We find no abuse here.
In June 1999, the State filed a notice of intent to introduce “prior conduct” of Flournoy involving a phone call and a diary either under K.S.A. 60-455 or independent thereof. The phone call was a three-way call between Flournoy, Vivian Shannon, and his aunt Shiverla Shannon. During the conversation, Flournoy told Vivian to come and get him or he would kill Thomas. Flournoy did not object upon admission of Vivian’s and Shiverla’s testimony about the phone call. Later Vivian found the diary containing an entry that said Flournoy decided to get help or “kill her,” meaning Thomas. The district court ruled that Vivian’s and Shiverla’s testimony regarding the phone call would be admissible. No ruling was made on the diary.
During trial, Detective Smith testified that he talked to Vivian about her finding the diary. Defense counsel objected, saying that the diary was highly prejudicial. The judge sustained the objection.
Later, during Vivian’s testimony, the State again attempted to question her about the diary. Defense counsel objected. The judge said:
“Well, I’ve thought about this since the subject first came up a few days ago; and upon thinking about it, I’m going to allow the State to get into this for this reason: It is simply corroboration for an event for which I have already allowed in as a prior bad act. I think that’s what you offered it for. I previously gave my rulings why I would allow testimony about that bad act, I have done so. It appears to me diat this is basically corroboration for that.”
Then, the judge found that if the proper foundation was laid, the diary would be admitted. Vivian testified that around March 1998, she found the “notebook” (diary) in Flournoy’s bedroom. She recognized his writing. When asked how she recognized the writing, Vivian said she “always read [her] children’s writing” and recognized it. The judge admitted the diary.
Vivian read the following diary entry from May 1996 to the jury:
“May 29, same ole story that — a family freaking out on each other and me coming home and trying to get cussed out and put out, this time the rage took over and I decided to get help or kill her. I went to K.U.M.C. and was kept overnight.”
We question the characterization of the diary entry as a prior crime or civil wrong under K.S.A. 60-455. Flournoy acknowledges that the diary entry was cumulative. As the district court noted, the diary entry corroborated Vivian’s and Shiverla’s testimony regarding Flournoy’s May 1996 phone call, where he talked of killing Thomas. Under the facts here, a reasonable factfinder could con- elude that the entry was relevant and tended to show Flournoy s intent, especially in light of his arguing that the killing was not intentional. The district court did not abuse its discretion in admitting the diary entry.
Rebuttal Testimony Regarding Statements and Tests Performed during a Competency Exam
Next, Flournoy argues that the district court erred by allowing Robert Huerter, a psychologist at Lamed State Hospital, to testify in rebuttal regarding his statements and tests. Flournoy contends that the hospital staff was required to give Miranda warnings before eliciting information from him. He asserts that because he did not receive a Miranda warning, his Fifth Amendment right against self-incrimination was violated.
Generally, “ ‘[w]hen constitutional grounds are asserted for the first time on appeal, they are not properly before [this court] for review.’ ” State v. Gould, 271 Kan. at 404, (2001). The exceptions noted in Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967), do not apply here.
After Flournoy’s testimony, the State announced its intention to call Robert Huerter, a master’s level psychologist, and Dr. J.L.L. Femando, a psychiatrist, both from the Larned staff, to testify. They would testify “regarding the issue of blackouts and whether [Flournoy] suffered from any diminished mental capacity on the night of the killing, because they did evaluate him twice for that issue.” Defense counsel objected, saying that this was not proper rebuttal evidence. The district court allowed the testimony.
We identify two problems confronting Flournoy in advancing this issue on appeal. First, he acknowledges that he did not object to Huerter’s testimony on Fifth Amendment grounds. His objection was based on the questioning as improper rebuttal. The evidence was offered for purposes of impeaching Flournoy’s testimony. Statements made under circumstances where the defendant was not properly Mirandized can be offered to impeach the defendant, as well as to rebut statements made during the defendant’s testimony. State v. Graham, 244 Kan. 194, 201, 768 P.2d 259 (1989).
Rebuttal evidence is that which contradicts evidence introduced by an opposing party. The use and extent of rebuttal rests in the sound discretion of the district court. 244 Kan. at 199-200. The erroneous admission of rebuttal evidence is not grounds for reversal unless discretion has been abused to defendant’s prejudice. State v. Valdez, 266 Kan. 774, 795, 977 P.2d 242 (1999).
In Graham, during its case in chief, the State sought to introduce Graham’s incriminating post-arrest statements made in jail. The district court ruled that the statements were inadmissible because they had been obtained during a custodial interrogation without complying with the Miranda procedure. 244 Kan. at 200-01. Later, after Graham had testified, the State sought to introduce the statements to rebut his testimony. The district court found that under Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971), Graham’s statement that a certain officer was “bound to get lucky and catch him with drugs sooner or later” was proper rebuttal testimony and could be used to impeach Graham’s testimony. 244 Kan. at 201. Harris held that admissions made by the accused to police officers, which were inadmissible in the State’s case in chief to establish guilt due to noncompliance with Miranda rules, could be used for impeachment where “(1) such statements are inconsistent with defendant’s trial testimony bearing directly on the crimes charged, and (2) the accused makes no claim that his statements were coerced and involuntary.” 401 U.S. at 224-26. We observe that Flournoy does not argue that statements made at Larned were coerced and involuntary. Unlike the situation in Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981), Huerter’s testimony regarding Flournoy’s statements was used to rebut Flournoy’s testimony that he had blacked out and did not remember committing the murder.
The second problem with Flournoy’s argument on this issue is that Dr. Fernando, the Lamed psychiatrist who evaluated Flournoy, also testified in rebuttal. Dr. Femando’s testimony addressed blackouts:
“[THE PROSECUTOR]: So was there anything in these records including medical care records that included other than the one alcohol binge that he had that caused a blackout. Was there anything that suggested that he had a medical problem that would cause blackout?
“[DR. FERNANDO]: No.
“[THE PROSECUTOR]: Or a mental problem that would cause it?
“[DR. FERNANDO]: No.”
In framing the Miranda Fifth Amendment issue and in developing his argument in his brief, Flournoy only targets Huerter’s testimony. Flournoy’s narrative in support of this issue contains only a passing conclusory reference to Dr. Fernando. Any objection to Dr. Fernando’s testimony appears to have been abandoned. See State v. Pratt, 255 Kan. 767, 773, 876 P.2d 1390 (1994). Flournoy could not have been prejudiced by the cumulative testimony of Huerter, the psychologist.
In the alternative, Flournoy argues that the rebuttal testimony of Huerter and Fernando was inadmissible under K.S.A. 60-447 as character evidence. Flournoy complains specifically about Huerter’s opinion concerning Flournoy’s ability to form the requisite intent, lack of mental defect, ability to distinguish between right and wrong, and his scoring high on the antisocial and narcissistic personality scales. Flournoy’s contention lacks merit. First, the rebuttal evidence in question here was not offered as evidence of Flournoy’s “character traits.” Second, Flournoy made no K.S.A. 60-447 objection at trial. See K.S.A. 60-404.
Flournoy’s Theory of Defense, Failure to Instruct
Finally, Flournoy contends that the district court erred in failing to instruct the jury on his theory of defense, i.e., that he was experiencing a blackout at the time he killed Thomas.
We have frequently said that a defendant is entitled to an instruction on the theory of defense if the theory is supported by evidence. Also, “ ‘there must be evidence which, viewed in the light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory.’ [Citation omitted.]” State v. Gonzales, 253 Kan. 22, 23, 853 P.2d 644 (1993). Flournoy acknowledges that he made no request for a blackout instruction. Thus, our standard of review requires reversal only if the district court’s failure to give the instruction was clearly erroneous. State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989). See K.S.A. 2000 Supp. 22-3414(3).
After Flournoy rested Ms case, the parties discussed jury instructions off the record. When they were back on the record, defense counsel requested a voluntary manslaughter instruction that was not given but made no objection to the court’s proposed instructions. For reasons unknown, since no record was taken, the district court gave an instruction consistent with PIK Crim. 3d 54.12-B on dimmished mental capacity:
“Diminished mental capacity may be considered in determining whether the defendant was capable of forming the necessary intent to kill and pre-meditation.”
Despite the fact that a diminished capacity instruction was given, Flournoy argues on appeal that a “blackout” instruction should have been given. We disagree. He cites State v. Massey, 242 Kan. 252, 747 P.2d 802 (1987), to support Ms argument. Massey was convicted of the first-degree murder of Ms wife. His defense was that he must have discharged the gun accidentally while in the throes of a seizure. 242 Kan. at 255. A doctor testified that Massey could have had a seizure from alcohol withdrawal. The district court gave a general jury instruction on intent, but not a separate instruction on unconsciousness rnduced by seizure. Massey objected only to a second-degree murder instruction. He proposed no additional instructions.
In determining whether the evidence in Massey was sufficient to require an unconsciousness-due-to-seizure instruction, we noted that die only evidence that Massey had a seizure at the time of the shooting was Ms own testimony. However, we also pomted out that there was clear evidence, both expert and eyewitness, that Massey suffered from seizures, and he had received medical treatment for his condition. In addition, a deputy sheriff saw Massey have a seizure in Ms cell 2 days after the shooting. Massey, we observed, was not claiming diminished capacity; he was claiming “lack of capacity by reason of a grand mal seizure,” a defense accepted in this state. 242 Kan. at 256, 259. We concluded that the district court’s failure to instruct on Massey’s defense was clearly erroneous.
In finding that an unconsciousness instruction should have been given at Massey’s trial, we said: “This is not to say the uncorroborated testimony of a defendant in a criminal case that he was unconscious by reason of a seizure at the time of the commission of an alleged crime is sufficient to require an instruction on unconsciousness.” The corroboration in Massey’s case, however, required such an instruction. 242 Kan. at 261.
Other than Key’s testimony, Flournoy presented no other corroborating evidence, expert or eyewitness, of his suffering from blackouts. Flournoy admitted that in June 1996, he filled out a questionnaire for the City Union Mission in which he said that he had no physical disabilities. He also admitted that on the questionnaire he said he had suffered one blackout that was caused from drinking a large amount of alcohol. He claimed no physical ailment on the questionnaire. When asked if Flournoy had told her of physical ailments impairing his memory, Flournoy’s mother said, “No.”
The notes on use to PIK Crim. 3d 54.12-B say that the diminished capacity instruction is applicable only to crimes committed before January 1,1996. See K.S.A. 22-3220. The crimes here were committed on November 26,1997. Flournoy, acknowledging State v. Hedges, 269 Kan. 895, 8 P.3d 1295 (2000), and State v. Jorrick, 269 Kan. 72, 81, 4 P.3d 610 (2000), does not argue the giving of 54.12-B as an independent issue on appeal. As in the Hedges case, the diminished capacity instruction was actually beneficial to Flournoy. He was given the possibility of a defense he was not entitled to receive under the law applicable to his case. The substance of the diminished capacity instruction focused on Flournoy’s ability to form intent. See Hedges, 269 Kan. at 904. The jury could have concluded that Flournoy lacked the necessary intent due to a blackout. Failure to give a blackout instruction was not clearly erroneous.
Finally, the contention that the K.S.A. 21-4638 hard 40 sentencing scheme is unconstitutional is disposed of adversely to Flournoy by our holding in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
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|
The opinion of the court was delivered by
Abbott, J.:
Appellee Cynthia J. Long, assistant district attorney for Shawnee County, Kansas, signed a probable cause affidavit on September 8,1999, and filed a criminal complaint against appellant Dale E. McCormick for stalking. K.S.A. 21-3438. The complaint was voluntarily dismissed by the State. The day after the complaint was dismissed, McCormick was detained by the University of Kansas police for approximately 1 hour while police determined if a warrant remained outstanding. McCormick, acting pro se, brought suit alleging negligence, various other tort claims, and a claim un der 42 U.S.C. § 1983 (1994) against Long, the Board of County Commissioners of Shawnee County (Board), the Shawnee County District Attorney’s office, and district attorney Joan Hamilton. On June 1, 2000, the district court granted defendants’ motions to dismiss McCormick’s petition. McCormick appealed the dismissal.
The Court of Appeals affirmed the district court’s dismissal of McCormick’s claims against the Board and Hamilton and found that the claim against the district attorney’s office had been abandoned on appeal. McCormick v. Board of Shawnee County Comm’rs, 28 Kan. App. 2d 744, 745, 24 P.3d 739 (2001). However, as to McCormick’s claim against Long, the Court of Appeals held that while the act of filing a complaint fell within the duties of a prosecutor, signing a probable cause affidavit did not. Thus, the court concluded that, in regard to signing the probable cause affidavit, Long was not entitled to absolute prosecutorial immunity or qualified immunity as to the § 1983 claim, nor was she immune from liability on the state tort law claims under either the public duty doctrine or discretionaiy function exception to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. This court granted Long’s petition for review.
The 8-page probable cause affidavit prepared by Long to support the felony stalking complaint began with the following prefatory statement:
“I, Cynthia J. Long, Assistant District Attorney, being of lawful age and first duly sworn upon my oath, depose and state as follows: that I have received the following information from official TPD 20981-99; 19726-99; 20409-99; 25184-99 and from officers whom I know from past investigations to be truthful and reliable.”
The final paragraph of the affidavit stated:
“All of the aforementioned events occurred in Shawnee County, Kansas. Wherefore the affiant believes that there are reasonable grounds and probable cause to believe that DALE E. MCCORMICK committed the crimes described above and prays the Court issue a warrant for his/her arrest.”
The State voluntarily dismissed the complaint on September 28, 1999. On September 29,1999, officers of the University of Kansas Public Safety Office, believing there was an active arrest warrant for McCormick, took him into custody and detained him for approximately 1 hour. As a result of his arrest and detention, McCormick filed this litigation, asserting various tort claims and a § 1983 claim. McCormick’s petition included the following factual allegations:
“10. On or about the 8th day of September, 1999, while in connivance with other private persons and governmental entities, Cynthia J. Long, acting as an agent of Shawnee County and the [Shawnee County District Attorneys office], swore her name to a ‘felony stalking’ ‘complaint’ against plaintiff in Shawnee County District Court. This utterly fraudulent ‘complaint’ caused a charge of ‘felony stalking’ to lie against plaintiff, subsequently causing a ‘felony warrant’ to issue for the arrest of plaintiff. The case number of this malicious prosecution was 99-CR-3636.
“As a ‘specific’ averment of ‘fraud,’ said ‘complaint’ alleged that plaintiff had been feloniously ‘stalking’ [Y.H.] since 12-31-98. In reality, plaintiff and [Y.H.] had a strange but intimate relationship through June of 1999, several weeks prior to [Y.H.] making her first fraudulent ‘police report’ against plaintiff on 6-27-99. Ms. Long was possessing [sic] of information that established these facts, but she deliberately excluded this information from the false and fraudulent ‘felony stalking complaint’ and ‘affidavit’ she ‘swore’ against plaintiff. Ms. Long intentionally, or with utterly malicious negligence, caused a magistrate to be deceived into allowing this fraudulent ‘stalking’ charge to lie against plaintiff, subsequently causing said magistrate to issue ‘felony warrants’ for the arrest of plaintiff.
“12. The ‘felony stalking’ ‘complaint’ and ‘affidavit’ that Ms. Long swore against plaintiff on or about 9-8-99, were perjured, and could scarcely have been more contradictory, false, deceptive, deceitful, or misrepresentative of the facts and circumstances surrounding plaintiff s relationship with [Y.H.]. The utter falsity of these instruments ‘sworn’ by Ms. Long clearly attaches liability to each of the defendants for damages suffered by plaintiff as a result of the ensuing malicious prosecution.”
After reviewing the motions to dismiss filed by the defendants, the district court held that McCormick failed to state a claim for which relief could be granted against the Shawnee County District Attorney’s office. The district court considered Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), and K.S.A. 22a-101 et seq., and found that the legislature had not created statutory capacity for the District Attorney’s office to be sued. In addition, because there was no cause of action against the District Attorney’s office, the court found that the requested injunctions could not be granted.
In regard to McCormick’s claims against Hamilton, the district court concluded that: (1) there was no privity between Hamilton and Long, and thus no privity between Hamilton and McCormick; (2) Hamilton owed no duty to McCormick for which she could be held liable; (3) because the District Attorney’s office could not be held liable, Hamilton could not be held personally liable; (4) even if Hamilton had been aware of the issuance of the warrant, there was no causal connection between her knowledge and McCormick’s detention by University of Kansas police; (5) K.S.A. 75-6104(e) provided her immunity under the discretionary function exception to the KTCA; and (6) Hamilton had absolute prosecutorial immunity under Kalina v. Fletcher, 522 U.S. 118, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997).
As to Long, the district court also found McCormick had failed to state a claim upon which relief could be granted because: (1) the only action by Long resulting in harm to McCormick was that she signed a criminal complaint and affidavit leading to the issuance of an arrest warrant; (2) to recover in negligence, McCormick must prove, among other things, the existence of a duty, but Long owned no specific duty to McCormick; (3) McCormick could not demonstrate any deprivation of rights or negligence; (4) Long was acting within her prosecutorial discretion when she filed charges against McCormick; (5) McCormick could not show that Long’s conduct resulted in his detention; (6) Long enjoyed immunity under the KTCA; and (7) Long enjoyed absolute prosecutorial immunity under Kalina.
On June 16, 2000, McCormick appealed the district court’s dismissal. Upon review, the Kansas Court of Appeals found that because McCormick abandoned his claim for injunctive relief in his written brief, he effectively removed the District Attorney’s office from the litigation. As to the other defendants, the Court of Appeals held the district court had properly granted the motions to dismiss as to the Board and Hamilton. However, it held that McCormick’s petition had alleged cognizable claims under § 1983 and state tort law against Long in connection with swearing out the probable cause affidavit. This court granted Long’s petition for review of the Court of Appeals’ decision.
Upon appellate review of a district court’s order granting a motion to dismiss for failure to state a claim, this court is required to assume that the facts alleged by the plaintiffs are true, along with any references reasonably to be drawn therefrom. We must also decide whether those facts and inferences state a claim on the theories presented by the plaintiffs and also on any other possible theory. Smith v. State, 264 Kan. 348, 353, 955 P.2d 1293 (1998).
I. § 1983 CLAIM
Here, Long requests this court to review and vacate the portion of the Court of Appeals’ decision reversing the district court’s dismissal of McCormick’s action against her. Long argues that the Court of Appeals made a misstatement when it held she was “not entitled to qualified immunity” from McCormick’s § 1983 claim. More specifically, Long contends that the Court of Appeals applied the wrong analysis in holding that Long was not entitled to qualified immunity, and urges this court to analyze the qualified immunity issue using a heightened pleading standard.
As noted by our Court of Appeals, “prosecutors have absolute immunity for activities intimately associated with the judicial phase of the criminal process, that is, for performing the traditional functions of an advocate.” 28 Kan. App. 2d at 748. Absolute immunity is not afforded to prosecutors in every instance, however. In Burns v. Reed, 500 U.S. 478, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1991), the United States Supreme Court stated that, in light of the common-law history of immunity accorded to prosecutors and the interests supporting that immunity, state prosecutors are “absolutely immune for initiating a prosecution and for presenting the State’s case” insofar as that conduct is “ ‘intimately associated with the judicial phase of the criminal process.’ ” 500 U.S. at 491-92. Yet the Bums Court refused to find a justification for extending absolute immunity from liability under § 1983 to a prosecutor giving legal advice to the police because, in the Court’s view, absolute immunity was “designed to free the judicial process,” not every form of conduct of a prosecutor. 500 U.S. at 494. The Court, considering whether anything short of absolute immunity would discourage prosecutors from performing their obligations, observed that the defense of qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” 500 U.S. at 494-95.
The case of Mitchell v. Forsyth, 472 U.S. 511, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985), stated that the purpose of qualified immunity was to “ permit the resolution of many insubstantial claims on summary judgment’ and to avoid ‘subjecting] government officials either to the costs of trial or to the burdens of broad-reaching discovery’ in cases where the legal norms the officials are alleged to have violated were not clearly established at the time.” 472 U.S. at 526.
Several United States Supreme Court cases suggest that the question of whether absolute or qualified immunity shields a prosecutor from liability under § 1983 depends upon the function undertaken by the prosecutor. See Kalina, 522 U.S. at 125-27 (applying a functional approach to the question of absolute prosecutorial immunity); Buckley v. Fitzsimmons, 509 U.S. 259, 125 L. Ed. 2d 209, 113 S. Ct. 2606 (1993) (endorsing the functional approach); Bums, 500 U.S. at 494 (holding that a prosecutor has absolute immunity under § 1983 for participating in a probable cause hearing, but not for giving legal advice to police). Therefore, when considering whether Long is entitled to qualified immunity from McCormick’s § 1983 and tort claims, we must pinpoint the role she undertook in swearing out the probable cause affidavit.
A. Nature of prosecutor’s role in swearing out a probable cause affidavit.
In Kalina, the United States Supreme Court distinguished the work of a prosecutor as an advocate from the act of testifying to facts contained in a probable cause certification. 522 U.S. at 129-30. The facts in Kalina are similar to those here. There, the plaintiff filed suit against Kalina, a deputy prosecuting attorney, based on a “Certification for Determination of Probable Cause” that summarized the evidence supporting the charges against plaintiff. 522 U.S. at 121. The Court distinguished Kalina’s act of personally vouching for the truth of facts set forth in the certification under penalty of perjury, stating:
“[Petitioner argues that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution. That characterization is appropriate for her drafting of the certification, her determination that the evidence was sufficiently strong to justify a probable-cause finding, her decision to file charges, and her presentation of the information and the motion to the court. Each of those matters involved the exercise of professional judgment; indeed, even the selection of the particular facts to include in the certification to provide the evidential support for the finding of probable cause required die exercise of the judgment of die advocate. But diat judgment could not affect the trudi or falsity of the factual statements themselves. Testifying about facts is die function of die witness, not of the lawyer. . . . Even when the person who makes the constitutionally required ‘Oath or affirmation’ is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.” 522 U.S. at 130-31.
Therefore, the Court of Appeals was correct in finding that while a prosecutor is fully protected by absolute immunity when performing traditional functions of an advocate, Long would only be entitled to qualified immunity as to the affidavit she swore out. See 522 U.S. at 131.
B. Waiver of qualified immunity.
McCormick argues that because Long failed to assert the affirmative defense of qualified immunity in her motion to dismiss, only mentioning it in passing, she has waived her right to this defense. In support of his argument, McCormick cites Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980).
The Gomez case dealt with the question of whether a plaintiff asserting a § 1983 claim must allege bad faith on the part of the defendant when pleading his or her case. There, the Court observed: “Since qualified immunity is a defense, the burden of pleading it rests with the defendant.” 446 U.S. at 640.
Here, Long filed her motion to dismiss, arguing that McCormick’s petition failed to state a claim for which relief could be granted. The district court granted the motion prior to Long filing an answer listing her affirmative defenses; thus, Long has not waived the affirmative defense of qualified immunity. Furthermore, in Saucier v. Katz, 533 U.S. 194, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001), the United States Supreme Court recently stated:
“Qualified immunity is ‘an entitlement not to stand trial or face die other burdens of litigation.’ Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The privilege is ‘an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.’ Ibid. As a result, ‘we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.’ Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam):’ 533 U.S. at 200-01.
Thus, McCormick’s assertion that Long waived the affirmative defense of qualified immunity is without merit, and the question of qualified immunity is properly before this court.
C. Should the heightened pleading standard apply?
Long contends that the Court of Appeals applied the wrong analysis in its determination regarding qualified immunity and urges this court to analyze the qualified immunity issue using a heightened pleading standard. In Van Deelen v. City of Eudora, Kan., 53 F. Supp. 2d 1223 (D. Kansas 1999), a pro se plaintiff alleged that an investigator working for the Douglas County District Attorney’s office knowingly made a false determination that probable cause for plaintiff s arrest existed and then knowingly filed a false complaint. The United States District Court for the District of Kansas said:
“‘In die context of a 12(b)(6) motion to dismiss, . . . the qualified immunity defense is limited to the pleadings,’ and ‘the allegations in the complaint and any reasonable inferences . . . from them’ are drawn in favor of the plaintiff. [Citation omitted.] In this context, die court applies ‘a heightened pleading standard, requiring the complaint to contain “specific, non-conclusory allegations of fact sufficient to allow die district court to determine that those facts, if proved, demonstrate that the actions take were not objectively reasonable in light of clearly established law.’ ” [Citations omitted.] Once this defense is raised, the plaintiff ‘may amend his complaint to include additional “specific, non-conelusoiy allegations of fact” sufficient to allow die district court to determine immunity.’ ” 53 F. Supp. 2d at 1232-33.
In a discussion of the procedures available to federal trial judges when handling § 1983 and other claims involving examination of an official’s state of mind, the United States Supreme Court stated:
“When a plaintiff files a complaint against a public official alleging a claim that requires proof of wrongful motive, the trial court must exercise its discretion in a way that protects die substance of the qualified immunity defense. It must exercise its discretion so that officials are not subjected to unnecessary and burdensome discovery or trial proceedings.” Crawford-El v. Britton, 523 U.S. 574, 597-98, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998).
Because the purpose of the qualified immunity is to spare prosecutors the costs and burdens of baseless claims, many courts felt it was not unreasonable to require plaintiffs to plead specific, nonconclusoiy allegations of fact, which if proven, would demonstrate a violation of clearly established law.
McCormick correctly asserted at oral argument that the Tenth Circuit decision in Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001), nullified the heightened pleading standard used previously in Tenth Circuit federal courts under Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997). Long had requested this court to apply Breidenbach in this case. In Currier, the Tenth Circuit Court of Appeals performed a review of the Supreme Court case of Crawford-El, 523 U.S. 574, and concluded:
“[T]his court’s heightened pleading requirement cannot survive Crawford-El. There is no relevant difference between the D.C. Circuit’s heightened burden of proof at summary judgment and this court’s heightened pleading requirement which justifies the continuing viability of the latter after Crawford-El. . . . Like the D.C. Circuit’s heightened burden of proof, this court’s heightened pleading requirement was based on Harlow. See Breidenbach, 126 F.3d at 1292. Nevertheless, as the Supreme Court made clear in Crawford-El, neither the holding nor the reasoning of Harlow, a qualified immunity case, warranted a change in the requirements of a plaintiff s affirmative case.” 242 F.3d at 916.
Therefore, following the lead of the Tenth Circuit Court of Appeals in regard to the procedure to be used when a § 1983 violation is claimed, this court will not impose the heightened pleading standard.
D. Franks v. Delaware hearing.
Long argues that the Court of Appeals failed to perform the analysis used by federal courts reviewing claims that a law enforcement officer submitted a false affidavit, referred to as Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), claims. In Franks, 438 U.S. at 155-56, the United States Supreme Court stated:
“[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.”
In State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), this court modified Kansas law to comport with Franks, creating an exception to the previous general rule that a defendant could not dispute allegations in the affidavit presented in connection with an application for a search warrant. Following Franks, this court said that an evidentiary hearing would be required where the movant’s claim was “supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth.” 225 Kan. at 44.
The Court of Appeals found that McCormick’s petition did allege “that Long made false statements and omitted exculpatory information in her affidavit” and that “Long’s affidavit was instrumental in the determination of probable cause.” 28 Kan. App. 2d at 750-51. It further found that law clearly prohibits swearing to and filing a false affidavit to procure an arrest warrant. 28 Kan. App. 2d at 751.
Long points to the allegations in McCormick’s petition as conclusory and nonspecific. The allegations contained in McCormick’s petition in this regard are that (1) the affidavit placed the alleged victim of the stalking, Y.H., in two different states on the same date, a factual impossibility that McCormick argues illustrates Long’s knowledge of the falsity of those facts; and that (2) Long knowingly omitted exculpatory information. Long urges this court to require McCormick to specify which portions of the affidavit were knowingly false at the time she signed it. Long’s argument is that there is no way the Court of Appeals could ascertain whether Long knew the statements were false or the omissions were ex culpatory at the time she swore out the affidavit without more specificity from McCormick.
We agree. A plaintiff must meet two requirements at a Franks hearing on the truthfulness of statements underlying a search warrant: (1) The movant must demonstrate that the affidavit contained erroneous information, and (2) the movant must demonstrate that the affiant knew that the affidavit was false or at least demonstrate that the affiant recklessly disregarded the truth. See Franks, 438 U.S. at 171; Jacques, 225 Kan. at 44. Until these two requirements are met, there is no way for an appellate court to determine whether dismissal of the § 1983 claim was proper.
We must note, however, that a Franks hearing “applies only where the affiant is a government agent and the defendant’s challenge is supported by sworn allegations that false statements made knowingly, intentionally, or with reckless disregard for the truth were included in the affidavit, and the false or reckless statement is necessary to the finding of probable cause.” State v. Jensen, 259 Kan. 781, 789, 915 P.2d 109, cert. denied 519 U.S. 948 (1996). In that regard, the issue of whether Long acted as a private person or as a government agent in swearing out the affidavit becomes an important consideration.
E. State versus private action
In considering a § 1983 claim filed by the parents of Stephanie Schmidt against a state parole officer, this court distinguished private misdeeds of a government employee from wrongful acts committed within the scope of employment, stating: “When a 42 U.S.C. § 1983 (1994) claim is asserted, a State actor may not generally be held liable under the Due Process Clause of fhe United States Constitution for private misdeeds.” Schmidt v. HTG, Inc., 265 Kan. 372, Syl. ¶ 1, 961 P.2d 677, cert. denied 525 U.S. 964 (1998). The two recognized exceptions to this general rule are: (1) the special relationship doctrine and (2) the danger creation theory. 265 Kan. at 379.
Under the special relationship doctrine, one who undertakes to render services to another may create a special relationship giving rise to affirmative duties to act under the common law of tort. In certain circumstances, that person may be held hable for doing so in a negligent fashion. See DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189, 201-02, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989).
The elements of the danger creation theoiy are: “(1) The plaintiff/victim must be a member of a limited and specifically definable group; (2) the defendant’s conduct specifically put members of that group at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and (5) the conduct, when viewed in the totality of the circumstances, is shocking to the conscience.” Schmidt, 265 Kan. 372, Syl. ¶ 1.
In regard to McCormick’s claim against Long, it is clear that neither exception would apply. Therefore, McCormick’s § 1983 claim against Long will only succeed if the wrongful conduct alleged by McCormick falls within Long’s duties as a state employee, constituting government action.
Thus, the Kalina case creates a conundrum for both Long and McCormick. If, pursuant to Kalina, Long’s conduct in swearing out the affidavit is only the act of a complaining witness, and not that of a state prosecutor, then McCormick is foreclosed from pursuing his § 1983 claim because he will not be able to demonstrate state action. If, however, Long’s actions are viewed as those of a law enforcement officer, the § 1983 claim may proceed, but the KTCA discretionary function exception might bar McCormick’s state tort law claims.
Here, Long was not acting in the capacity of an ordinary complaining witness, but rather was performing a type of hybrid law enforcement function in summarizing police reports and presenting them to the magistrate for review in the form of an affidavit. We find that this function may be characterized as falling within the scope of Long’s employment, just as any law enforcement officer signing an affidavit. Therefore, Long’s actions were those of a government agent, even though under Kalina, she was at the time performing the function of a witness.
F. Qualified immunity from § 1983 claim.
To determine whether Long was entitled to immediate dismissal of McCormick’s § 1983 claim based on qualified immunity, our Court of Appeals applied a two-part test from the Third Circuit Court of Appeals case of Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997), and ultimately found that Long was not entitled to qualified immunity. 28 Kan. App. 2d at 750-51.
In Saucier v. Katz, 533 U.S. at 201-02, the Supreme Court set forth a two-part inquiry to be used when ruling upon the issue of qualified immunity:
“Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? This must be the initial inquiry. [Citation omitted.]. . . .
“If no constitutional right would have been violated were die allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation can be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether die right was clearly established.. . .
“[W]e emphasized in Anderson [v. Creighton, 483 U.S. 635] ‘that the right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ 483 U.S. at 640. The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. [Citation omitted.]” (Emphasis added.)
If, following remand and a Franks hearing, the case is not dismissed, the issue of Long’s qualified immunity should be revisited using the analysis outlined in Saucier.
II. STATE TORT CLAIMS IMMUNITY
When the legislature enacted the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., liability became the rule for negligent or tortious conduct, and immunity the exception. Hopkins v. State, 237 Kan. 601, 609, 702 P.2d 311 (1985). The burden of showing immunity under the KTCA is “placed upon the governmental entity or employee to establish entitlement to any of the exceptions set forth in K.S.A. 75-6104.” 237 Kan. at 609.
Two types of immunity could apply to a case of this nature. The first is qualified immunity and the second is discretionary immunity. Discretionary immunity is defined within the KTCA by K.S.A. 2000 Supp. 75-6104(e):
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the discretion involved.”
Here, Long challenges the Court of Appeals’ finding that “[i]n executing the [probable cause] affidavit, Long acted outside her duties as a prosecutor and is not afforded immunity under the KTCA.” 28 Kan. App. 2d at 752. Long avers that the Court of Appeals misinterpreted Kalina v. Fletcher, 522 U.S. 118, 139 L. Ed. 2d 471, 118 S. Ct. 502 (1997), and misapplied it to the tort claims act issue. Long claims she was required and expected to execute probable cause affidavits as part of her duties as a prosecutor; thus, the KTCA exception should apply to shield her discretionary decision to file an affidavit from liability from tort actions.
Amicus curiae Kansas County and District Attorneys Association (KCDAA) joins in Long’s argument that the Court of Appeals misapplied Kalina when it suggested that she was afforded no immunity at all. The KCDAA convincingly argues that nowhere in Kalina does the Supreme Court suggest that a prosecutor should be afforded less protection than a law enforcement officer in swearing out an affidavit. The KCDAA posits that the Court of Appeals incorrectly concluded that under K.S.A. 2000 Supp. 75-6104(e), Long’s execution of the probable cause affidavit fell outside her duties and, therefore, she would not be afforded immunity under the KTCA.
The Court of Appeals did not misinterpret the message in Kalina that “testifying about facts is the function of the witness, not of the lawyer.” 522 U.S. at 130. However, in the concurrence to Kalina written by Justice Scalia and joined by Justice Thomas, Justice Scalia noted that a prosecutor swearing out an affidavit performs essentially the same function as police officers, and that while a prosecutor “is absolutely immune from any suit challenging her decision to prosecute or seek an arrest warrant, [she] can be sued if she changes ‘functional categories’ by providing personal testi mony to the Court.” 522 U.S. at 131, 135. In his concurrence, Justice Scalia stated:
“That conclusion accords with the common law’s treatment of private prosecutors, who once commonly performed the ‘function’ now delegated to public officials like petitioner. A private citizen who initiated or procured a criminal prosecution could (and can still) be sued for the tort of malicious prosecution— but only if he acted maliciously and without probable cause, and the prosecution ultimately terminated in die defendant’s favor. Thus, although these private prosecutors (sometimes called ‘complaining witnesses’), since diey were not public servants, were not entitled to quasi-judicial immunity, there was a kind of qualified immunity built into the elements of the tort.” 522 U.S. at 132-133.
In support of the idea that she should be afforded immunity from state tort law claims, Long cites the case of Howard v. United States, 2000 WL 1272590 (E.D. Pa. 2000), where the court held no federal tort claims liability was triggered where a DEA agent allegedly misrepresented and omitted facts in application for a search warrant. In Howard, unlike here, the plaintiffs claims against individual DEA agents were dismissed due to plaintiffs failure to follow the rules of federal procedure. There, the court considered the sole issue of the liability of the United States government in relation to the claim, evaluated the facts presented, and determined that “the function of identifying what evidence to submit to a judicial tribunal by a police officer or drug agent is a discretionary one even if evidence has been concealed and distorted.” 2000 WL 1272590 at *2.
The Court of Appeals cited Dougan v. Rossville Drainage Dist., 243 Kan. 315, 322, 757 P.2d 272 (1988), where this court stated that “the discretionary function exception is not applicable in those situations where a legal duty exits, either by case law or by statute, which the governmental agency is required to follow.” Because prosecutors are not only allowed to file affidavits but are expected to do so in offices across the state, and because no law prohibits prosecutors from doings so, Long contends that her action of swearing out the affidavit must fall within the discretionary function exception. In Dougan, we stated: “ ‘[I]t is clear that if a duty is not mandatory or not clearly specified then it is discretionary.’ ” 243 Kan. at 323-24. Long argues that because prosecutors are nei ther required nor prohibited by law from swearing out a probable cause affidavit, this is exactly the sort of nonmandatoiy activity that fits within the definition of a discretionary function.
It is important to note, however, that Dougan held that the discretionary function exception did not apply in that case because “under the KTCA, a governmental agency does not have a discretionary right to violate a legal duly and avoid liability.” 243 Kan. at 325.
McCormick contends that, under Hopkins, the malicious acts of government employees fall outside the protection of the KTCA. “The exceptions to liability of a governmental entity or employee set out in 75-6104 are not without limitations. Only negligent or wrongful acts or omissions of employees are excepted from liability by 75-6104, while acts or omissions involving more than the lack of ordinary care and diligence are not.” Hopkins, 237 Kan. at 611. As the Court of Appeals noted, Kalina leaves no doubt that clearly established law prohibits the swearing to and filing of a false affidavit to procure an arrest warrant, and Long was charged with knowledge that such an act is unreasonable. See 28 Kan. App. 2d at 751.
Here, this court is presented with a fine distinction between granting Long KTCA immunity for unauthorized conduct within the scope of employment and denying KTCA immunity for unauthorized conduct outside the scope of employment. “Subject to the limitations of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be hable under the laws of the state.” Woodruff v. City of Ottawa, 263 Kan. 557, Syl. ¶ 5, 951 P.2d 953 (1997). While tort liability would not be precluded for Long’s tortious conduct outside the scope of her employment, K.S.A. 2000 Supp. 75-6104(e) precludes tort liability in conjunction with the performance of a discretionary function within the scope of employment.
In Robertson v. City of Topeka, 231 Kan. 358, 362, 644 P.2d 458 (1982), this court held that the proper test for applying the discre tionary function exception looked to the nature and quality of the discretion exercised. Under this test, the court focuses on whether the act in question is one the legislature intended to shield from liability. Therefore, this court must ultimately decide if the legislature intended to impose upon law enforcement officers the affirmative obligation of ascertaining the truth of all facts contained in summarized statements when swearing out a probable cause affidavit. Because we find that the function Long performed in summarizing police reports in the form of aprobable cause affidavit was a discretionary duty within the scope of her employment, we hold that Long is entitled to discretionary function immunity under the KTCA.
McCormick fails to provide specific, nonconclusory allegations allowing a court to make a meaningful determination of whether he claims he is entitled to relief based on Long’s alleged commission of any intentional torts outside the scope of her employment. Although the district court case caption named “Cynthia J. Long as a Private Individual,” the claims in the body of the petition allege claims arising from Long’s actions as an agent of Shawnee County. While McCormick alleges in his petition that he “repeatedly informed the [Shawnee County District Attorney’s Office], and other agents of government, that the reports filed by [Y.H.] were thoroughly and completely delusional, and that plaintiff had a plethora of evidence that would utterly refute and disprove the ‘reports’ filed,” McCormick’s allegations tie Long’s actions to her employment and do not relate to claims against her individually.
“ ‘In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusoxy allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.’ ” Colombel v. Milan, 24 Kan. App. 2d 728, 729, 952 P.2d 941 (1998) (quoting Ripley v. Tolbert, 260 Kan. 491, Syl. ¶ 2, 921 P.2d 1210 [1996]).
“K.S.A. 2000 Supp. 60-208(a)(1) requires a short and plain statement of the claim showing that the pleader is entitled to relief. However, traditional causes of action and rules for pleading causes of action still occupy an important position in law. Notice pleading did not do away with the traditional causes of action or the need to at least present the ‘bare bones’ of the cause of action in the petition in a concise and understandable manner. The claim is to be provided by the petitioner and not by the supposition of the court.” Meyer Land & Cattle Co. v. Lincoln County Conservation Dist., 29 Kan. App. 2d 747, Syl. ¶ 7, 31 P.3d 970 (2001).
Under K.S.A. 60-212(b)(6), a defendant may move for dismissal for failure to state a claim upon which relief can be granted. Procedurally, such a motion “shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto . . . .” In the absence of an understandable statement by McCormick that Long’s actions were outside the scope of her employment, we hold that Long is entitled to dismissal of the state tort law claims under the discretionary function exception to the KTCA.
III. DISTRICT JUDGE’S FACTUAL FINDINGS
Next, we consider Long’s claim that the Court of Appeals erred in rejecting the district court’s conclusion that McCormick failed to prove causation between Long’s action in swearing out the probable cause affidavit and his arrest by University of Kansas officers. Long argues that under this court’s standards of review, the Court of Appeals was not free to disregard the district court’s factual findings in this regard, citing R.B. Enterprises, Inc. v. State, 242 Kan. 241, 747 P.2d 152 (1987). There, we stated: “Findings of fact by the district court which are supported by substantial competent evidence will not be disturbed by this court.” 242 Kan. at 248.
The Court of Appeals held that causation was pled within the four comers of McCormick’s petition. 28 Kan. App. 2d at 150. We agree. Paragraph 23 of McCormick’s petition states that the incident “was in large part, caused by the ‘wanton or malicious negligence’ of Ms. Long ... in first issuing a fraudulent ‘warrant’ for plaintiff for ‘felony stalking,’ and then in not immediately informing the KUPD that said ‘warrant’ had been retracted.” Upon review of a motion to dismiss, this court is required to assume that the facts alleged by the plaintiff are trae. Thus, the district court’s finding of no causation was unsupported. The Court of Appeals correctly concluded that whether the officers relied on the arrest warrant in detaining McCormick is a factual question which survives a motion to dismiss. See 28 Kan. App. 2d at 750.
IV. PUBLIC DUTY DOCTRINE
Long next complains of the Court of Appeals’ discussion of the public duty doctrine. Here, the district court dismissed the tort claims against Long because she owed no independent duty to McCormick; thus, without a prima facie showing of duty, McCormick could not possibly prove neghgence. Generally, the KTCA provides for liability only where the government entity or actor, if a private person, would be hable under the laws of this state. See Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 19-20, 20 P.3d 39 (2001). Thus, in order to prove neghgence, McCormick must prove the prima facie elements of duty, breach, causation, and damages.
The Court of Appeals has previously stated:
“An analysis of the defendants’ potential liability for negligence under the KTCA begins and ends with duty. A tort is a breach of duty imposed by law. [Citation omitted.] In order to be liable for negligence, a defendant must owe a duty of care to the injured plaintiff. The existence of a duty is a question of law, and we have unlimited review of questions of law. [Citation omitted.]
“Generally, law enforcement and social services officials owe a legal duty only to the public at large. [Citations omitted.] Under the public duty doctrine, officials have no duty to any individual except where circumstances create a special relationship or specific duty. [Citations omitted.] Where there is no duty, there can be no breach.” Kennedy v. Kansas Dept. of SRS, 26 Kan. App. 2d 98, 100, 981 P.2d 266 (1999).
Absent some special relationship with or specific duty owed to an individual, liability will not he for damages. Conner v. Janes, 267 Kan. 427, 429, 981 P.2d 1169 (1999).
The district court dismissed McCormick’s neghgence claim in part because a prosecutor has no duty to an individual. The Court of Appeals agreed that, in performing her legal duties as a prosecutor, there could be no liability to McCormick because the public duty would abrogate a finding of neghgence. However, it distinguished the conduct of Long in swearing to the affidavit from her other duties as a prosecutor and found that when she “stepped outside her role as a prosecutor and became a complaining witness, the public duty doctrine no longer applied.” 28 Kan. App. 2d at 751.
Long contends that the “execution of the business records type of affidavit executed by [her] would not make her a witness who would or could be called at McCormick’s criminal trial .... [Instead she] would have to offer the actual witnesses who were listed in the complaint.” Regardless of Long’s status as a witness in a criminal trial, Kalina found that “[n]o matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required ‘Oath or affirmation’ is a lawyer, the only function that she performs in giving sworn testimony is that of a witness.” 522 U.S. at 130-31. The Kalina Court suggests this type of procedure where the prosecutor summarizes the facts within an affidavit is no longer acceptable. In fact, the Court observed that the prosecutors may well abandon the practice of routinely attesting to the facts recited in the certifications of probable cause. 522 U.S. at 131.
Law enforcement officials generally owe a legal duty only to the public at large, except in circumstances creating a special relationship or specific duty. K.S.A. 22-2202(13) defines a law enforcement officer as
“any person who by virtue of office or public employment is vested by law with a duty to maintain public order or to make arrests for violation of the laws of the state of Kansas . . . and includes court services officers, parole officers and directors, security personnel and keepers of correctional institutions . . . while acting within the scope of their authority.”
Kalina stated that the function performed in giving sworn testimony is that of a witness and not that of a prosecutor. 522 U.S. at 130-31. However, looking at the hybrid function performed by Long, we find that she bore the same type of duty as other law enforcement officers in swearing out a probable cause affidavit and applying for an arrest warrant.
In Franks v. Delaware, 438 U.S. 154, 164, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), the Supreme Court stated that, in certain circumstances, the veracity of a warrant must be permitted because “the Warrant Clause itself . . . takes the affiant’s good faith as its premise: ‘[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . .” Thus, the Court held that material information included in a warrant affidavit must be “truthful.” The Supreme Court explained that “truthful” does not mean “that every fact recited in the warrant affidavit is necessarily correct,” but only that the affiant accepted the facts as true. 438 U.S. at 165.
In United States v. Luna, 525 F.2d 4, 8 (6th Cir. 1975), the court wrote:
“[I]t must be recognized that law enforcement agents presenting evidence to magistrates could make a mockery of the magistrate’s role if, in the necessarily ex parte proceeding, they could freely employ false allegations in order to secure the warrant. The same would likewise be true if the agents could, with impunity, draft affidavits with utter recklessness as to the truth or falsity. In either instance there would be a lack of good faith in the performance of the agent’s duty to the judicial office.”
A law enforcement officer swearing out an affidavit for use by a magistrate at a probable cause hearing owes a duty of good faith to the judicial office. Therefore, although the public duty doctrine would not seem to shield the prosecutor under the holding in Kalina, in the absence of evidence of malice, Long owes a specific duty only to the court, not to McCormick.
On remand, the district court should conduct a Franks hearing in regard to McCormick’s § 1983 claim to determine the reasonableness of Long’s actions. In Malley v. Briggs, 475 U.S. 335, 343, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986), the United States Supreme Court stated that in the case of an officer applying for a warrant, “the judicial process will on the whole benefit from a rule of qualified rather than absolute immunity. The Malley Court made no distinction between an arrest warrant and a search warrant in a § 1983 action for damages and held that the standard of objective reasonableness defined the issue of whether qualified immunity should be accorded to the officer. 475 U.S. at 344 n.6. McCormick’s case should not be allowed to proceed if, using the reasonably well-trained officer standard, Long’s actions are found to be objectively reasonable. Following that evidentiaiy hearing, barring a finding that the affidavit was made maliciously and without probable cause, the § 1983 claim should be dismissed on the grounds of qualified immunity.
Affirmed in part, reversed in part, and remanded with directions. | [
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On July 10, 1992, the petitioner, William Scott Morris, was indefinitely suspended from the practice of law in Kansas, to be effective from December 17,1990, which was the date of his original temporary suspension. In re Morris, 251 Kan. 592, 834 P.2d 384 (1992).
On July 7, 2000, Morris filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (2000 Kan. Ct. R. Annot. 274). On June 26, 2001, a hearing was held before a panel of the disciplinary board in the office of the Disciplinary Administrator.
On July 23, 2001, the panel filed its report setting out the circumstances leading to Morris’ suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel unanimously recommended that Morris’ petition for reinstatement to the practice of law in Kansas be granted. Since the panel report recommends reinstatement, no response is required by petitioner, and, pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court.
The court, after carefully considering the record, accepts the findings and recommendations of the panel that petitioner be reinstated to the practice of law in Kansas.
It Is Therefore Ordered that William Scott Morris be reinstated to the practice of law in the state of Kansas, and the Clerk of the Appellate Courts is directed to enter petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports.
Effective this 10th day of September, 2001. | [
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|
The opinion of the court was delivered by
Brazil, J.:
In this probate proceeding, Dan Turner and Phillip Turner appeal the district court’s refusal to allow their claims for attorney fees for $11,730 against the estate of Maynard Snook. According to the Turners, this amount represents the attorney fees associated with work the Turners performed in a foreclosure lawsuit against Snook initiated by Farmers State Bank (Farmers Bank) of Bucklin and in a bankruptcy action involving a reorganization of Snook’s affairs under Chapter 12 of the Bankruptcy Code. The district court dismissed the Turners’ petition, finding that no additional fees were approved by the bankruptcy court other than the $5,000 fee allowed in that action. Therefore, the court held, the Turners have no claim that survived the bankruptcy proceeding. Further, the court held that if their claim did survive the bankruptcy, it was not timely filed in the probate case. Steven Riegel, Snook’s grandson, is the executor of Snook’s estate. George Voss is the attorney for the estate.
This case has a long and tortured history. Farmers Bank sued Snook in Ford County, seeking to foreclose its mortgage on Snook’s property on Januaiy 23, 1987. Snook signed Dan Turner’s “Employment Contract Agreement” on February 20, 1987. The agreement provided for attorney fees to be calculated on an hourly basis of $100.
On March 4, 1987, Turner filed an “Original Petition under Chapter 12” on behalf of Snook in bankruptcy court. Following the filing of this document, the bankruptcy trustee sent a letter to Turner with a copy to Snook stating:
“[YJour client . . . may not:
“a. Retain or employ attorneys, accountants, appraisers, auctioneers or other professional persons without court approval. This includes employing the attorney who filed the petition to provide services after the filing. See 11 U.S.C. § 327.
“b. Compensate any attorney, accountant, appraiser, auctioneer or other professional except as allowed by the court. See 11 U.S.C. § 330.”
As the above language suggests, the Turners were on notice that compensation would have to be approved by the bankruptcy court.
On April 6,1987, Turner filed a “Voluntary Petition under Chapter Twelve” which included a schedule of Snook’s assets and liabilities. This document contained the following questions and answers regarding the agreement between the Turners and Snook on the matter of attorney fees:
“b. Have you during the year immediately preceding or since the filing of the original petition herein paid any money or transferred any property to the attorney, or to any other person on his behalf? (If so, give particulars, including amount paid or value of property transferred and date of payment or transfer.)
“Yes — $2,500 1-30-87
“Dan E. Turner
“c. Have you, either during the year immediately preceding or since the filing of the original petition herein, agreed to pay any money or transfer any property to an attorney at law, or to any other person on his behalf? (If so, give particulars, including amount and terms of obligation.) (Emphasis added.)
“Yes $5,000 upon filing.”
These answers suggest the agreement was a flat fee, not an hourly fee as shown by the employment contract agreement quoted above.
Turner also filed an “Unsworn Declaration under Penalty of Perjury by the Attorney for the Debtor.” This document contained the following questions and answers regarding the agreed attorney fees:
“1. That the compensation paid or promised to him for services rendered or to be rendered in connection with the case is as follows:
“$5,000.00 to Dan E. Turner for bankruptcy proceeding
“2. That the source of such compensation is as foEows:
“Debtors Funds.”
Dan Turner, on behalf of Snook, filed a “Chapter 12 Plan of Reorganization as of June 8, 1987” in the bankruptcy court. The plan of reorganization included the following paragraph regarding attorney fees:
“2. The Trustee shall first pay in full all claims entitled to priority as set forth in Title Eleven, Untied States Code, Section 507 unless the holder agrees to a different treatment. These claims shall be paid by deferred payments in such priority and installments as the Trustee in his sole discretion deems appropriate:
(a) Claims consisting of all claims entitled to priority under section 507(a)(1) and 503(b) of the Bankruptcy Code known as administrative expenses. The administrative claims of the Chapter Debtors attorney, shall not exceed an additional $5,000.00.” (Emphasis added.)
Farmers Bank objected to Snook’s attempt to take advantage of the homestead exemption. Its objection was overruled and the bank appealed to the federal district court on January 23, 1989. The federal district court finally affirmed the bankruptcy court’s decision to allow the homestead exemption on November 15,1991.
The bankruptcy court approved Snook’s Chapter 12 plan on September 22, 1988, but it was not memorialized in a written form and filed until June 2,1989. The bankruptcy court made this order subject to the final determination by the federal district court of the Farmers’ Bank objection to Snook’s homestead exemption.
The June 2, 1989, order confirming the Chapter 12 plan also contained the following language relevant to the Turners’ attorney fees:
“11. The debtor’s attorney fees and expenses will be paid over a period of time, after an application has been filed icith the Court and approved.” (Emphasis added.)
As the Snook estate points out, the record does not show the Turners made any such application with the bankruptcy court.
As discussed below, Snook died on November 14, 1989. The bankruptcy trustee filed a motion to dismiss on or around January 24, 1990, asking the court to dismiss the bankruptcy case because Snook had died. The Turners opposed the trustee’s motion and the bankruptcy court denied it on March 5, 1990, substituting Snook’s probate estate for Snook.
On March 31, 1990, Turner sent Riegel a bill for $188.24 for copies and postage. The bill showed an earlier payment of $95.26 and a previous balance of $248.50. It does not indicate any request for hourly attorney fees.
Finally, the Chapter 12 trustee filed an order to discharge Snook’s estate from Chapter 12 proceedings on March 17, 1992, showing the Snook estate made all payments as contemplated under the reorganization plan as scheduled.
Thus concluded, albeit temporarily, the proceedings before the bankruptcy court.
Following Snook’s death, Riegel, the appointed executor under Snook’s will, filed a petition to probate the will on November 30, 1989, and published notice of the petition on December 1, 1989, December 8, 1989, and December 15, 1989. Thus, April 1, 1990, was the end of the claim period. See K.S.A. 59-2239(1).
On September 6, 1990, Turner filed a petition to allow his demand for attorney fees in this probate case. His petition asked the court to award him $16,730 “[f]or representation of the deceased prior to his death and the obtaining of an Order Confirming the deceased’s Chapter 12 Plan of Reorganization.” (Emphasis added.) Turner later amended the petition to reflect the fact Snook had already paid him $5,000 — $2,500 as a “retainer” and $2,500 as a “payment.”
On June 15, 1992, Riegel filed the petition for final settlement which announced Riegel’s intention of not paying the Turners any legal fees because the claim was not filed within 4 months of the first published notice. Notice of the above petition was published on June 18, 1992, June 25, 1992, and July 2, 1992.
On July 10, 1992, Turner filed a lawsuit in Shawnee District Court, naming Voss, Riegel individually, and Riegel as the executor of the Snook estate. The Turners’ petition asserted that Riegel and Voss, on behalf of the estate, had authorized Turner to continue to represent the Snook estate in the Chapter 12 proceeding and, in a related appeal, to the federal district court. The petition sought to recover attorney fees in the amount of $11,730. The record is not clear but apparently nothing became of this litigation.
On July 13, 1992, Turner filed his objection to the petition for final settlement in the probate case. The objection described the Shawnee County lawsuit and argued the petition for final settlement should, therefore, not be granted. The Turners filed a brief in support of the claim on September 8, 1992.
On September 17, 1992, Riegel filed a reply brief with attachments. This reply brief contained Riegel’s affidavit, which provided in part:
“3. Your Affiant was present when M.W. Snook executed the alleged Employment Contract Agreement attached as Exhibit 1 to the Petitioners’ Brief. That the contract was explained to M.W. Snook, Kenneth Snook, Larry Snook and your affiant as the authorization of M.W. Snook to be billed for expenses monthly in addition to the ‘tum-key’ fee of Dan E. Turner for the bankruptcy proceeding of $5,000.00. That M.W. Snook during his lifetime, and Steven B. Riegel, as executor of the Estate of M.W. Snook, did pay such monthly expenses as they were billed pursuant to that agreement as explained. M.W. Snook did not get a copy of Exhibit 1.
“6. When Steven B. Riegel received the first notice of any fees due Dan E. Turner, he telephoned Dan E. Turner at his office in Topeka and was told by Dan E. Turner, ‘not to worry about it’. He (Turner) did not know anything about the billing, but his ‘girls’ had obviously made a mistake. Your affiant was present, along with Larry Snook and Kenneth Snook, when M.W. Snook was told by Dan E. Turner that the entire fee for the bankruptcy proceeding would be $5,000.00, ‘turn-key’, ‘whether it took 5 minutes or 5 years’, but that the $5,000.00 must be paid ‘up-front’ before filing the Petition in bankruptcy.” (Emphasis added.)
The magistrate judge issued its decision which held “the Turner Firm claim is to be allowed in as a duly exhibited demand.” Inexplicably, this decision came over 1 year later on October 12,1993.
The estate appealed the magistrate judge’s decision to the district court for a de novo determination of the issues on October 14, 1993.
On December 19, 1994, Dan Turner filed a motion for stay in the district court to give him time to return to bankruptcy court to ask that court to resolve the attorney fees issue. The district court granted the motion for stay on the same day.
Following a hearing, the bankruptcy court denied Turner’s motion to reopen the bankruptcy case for the determination of their attorney fees in the amount of $11,730. Ruling from the bench, Judge Robinson said in part:
“[W]hat you have articulated to me is that your cause is that you didn’t file fee applications during the course of the bankruptcy and from reading the file that would apply even to the initial $5,000 which apparently you were paid before filing; and assess a consequence, you are now in a position that you are seeking payment through a probate proceeding for fees that haven’t been approved through the bankruptcy.
“I reviewed the fee application and there are a number of entries that pertain to work that clearly is something that ought to be compensable through a 12. I am not going to decide whether the work on exemption litigation is compensable or not. I don’t think cause has been shown to open it. By virtue of having none shown, there is no reason to file to reopen it, no reason I can see, was the kind of work you should have sought approval for fee application. I think whatever the debtor owed you at the time of die discharge which apparendy is everything in the fee application would have been pursuant to section 1228, you can go back to probate court and perhaps convince the probate court otherwise, but on the facts I show no cause to reopen and I am not going to make a decision on merits.” (Emphasis added.)
At this point, Turner asked, “For clarification, for those fees that deal with the exempt property, is the court making a determination of whether or not they had to be submitted to the court or is the court leaving that to the probate estate?” Judge Robinson replied, “I am leaving that to the probate judge.”
Following the above hearing, Voss submitted an “Order” which Judge Robinson signed. The order was filed in the bankruptcy court on February 16, 1995. The order stated:
“4. Whatever the debtor owed the applicants at the time of discharge, which apparently is eveiything in the fee application, has been discharged pursuant to Section 1228.”
Later, Judge Robinson specifically disapproved of the above language, and held in her own order filed March 13, 1995:
“The Court finds that the February 16, 1995 Order did not properly reflect the Court’s ruling at the February 2, 1995 hearing. The Court did not rule that all attorneys’ fees incurred in the defense of the debtor’s exemptions are discharged. The Court noted that the issue was open to question whether all attorneys’ fees were discharged since none were allowed during the bankruptcy case. However, the Court indicated that the probate court could determine whether attorneys’ fees which were not allowed in bankruptcy would nevertheless be payable in probate court. To the extent that § 4 of the February 16,1995 Order represents that attorney’s fees are discharged, that paragraph should be stricken from the Order.” (Emphasis added.)
The Turners relied on the bankruptcy court’s amended order to argue in the probate case that the services performed were personal to the debtor, not benefitting the estate and, therefore, not properly compensable from the bankruptcy estate. The estate replied that the attorney fees should not be allowed even if the bankruptcy court refused to reach the issue.
The district court finally issued its “Memorandum Opinion on Motion to Dismiss” on October 30, 2000. In this opinion, the court found:
“The claim language was specifically for representation of the decedent prior to his death and the obtaining of an order confirming the Chapter 12 plan of bankruptcy. An amended version of the claim was filed on December 20,1990, reciting the same claim but reducing it by $5,000. A significant omission from both the claim and the amendment is an allegation that services were provided in the bankruptcy case at the request of the executor after the death of the decedent.”
The district court’s “Order of Dismissal” relied, inter alia, on the fact that the bankruptcy court did not approve the Turners’ fees, therefore finding the Turners were barred from trying to collect the fees later in probate court. It also found that even if the claim had merit under bankruptcy law, their claim was barred in the probate case under the nonclaim statute. The district court dismissed the Turners’ petition on November 15, 2000, and the Turners appealed.
The Turners argue the district court erred in not finding there was an employment contract which was based on an hourly rate between them and Snook which was adopted by the estate after Snook’s death. The Turners assert in their brief on appeal that Riegel orally agreed on approximately February 1, 1990, that Snook’s estate would pay for the Turners’ fees accrued before Snook’s death and for any additional fees following his death.
The terms of a written contract can be varied, modified, waived, annulled, or wholly set aside by any subsequently executed contract, whether such subsequently executed contract be in writing or in parol. Coonrod & Walz Const. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, 73, 535 P.2d 971 (1975). Whether a term of a written contract has been modified or waived by a subsequent agreement is a question of fact for the trial court. Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, 330, 582 P.2d 1111 (1978).
The Turners assert Voss orally represented on April 17, 1990, which was after the running of the probate statute of hmitations, that the Turners did not have to file a claim for attorney fees until after the bankruptcy proceedings were completed. They contend they asked Voss on December 17,1991, and March 25,1992, when the attorney fees would be paid and that he indicated in a March 26, 1992, telephone conversation that the fees would be paid. The Turners assert it was not until June 29, 1992, when they received a copy of the Snook estate’s petition for final settlement that they realized that Riegel did not intend to pay the fees. In summary, it is the Turners’ position that Voss and Riegel encouraged the Turners to continue work on the bankruptcy case, but at the same time planned to prevent the Turners from receiving compensation based on .their failure to timely file a claim before the probate court.
The estate maintains the Turners orally represented to Snook and Riegel that the fee was a flat $5,000 fee. The estate expressly denies each of Turner’s assertions.
The district court, in its order for dismissal, found that the “contract between Maynard Snook and Dan Turner was for $5,000 for professional services to be rendered in a Chapter 12 Bankruptcy proceeding” and that “[n]o effort was made to request approval of a reaffirmation of any new contract for attorney fees between the executor of the Snook Estate and the Turner Law Firm.” Thus, the district court impliedly found Snook and the Turners had an arrangement that was at odds with the written contract. Furthermore, the district court impliedly found that Riegel did not agree to bind the estate to an hourly arrangement with the estate. These findings are supported by the record on appeal.
The Turners argue the written contract proves the arrangement was not for a flat $5,000 fee. The Turners assert in their brief on appeal that the fact the estate continued to pay the expenses related to the Turners’ efforts in bankruptcy court proved the estate did not believe the arrangement was for a flat $5,000 fee.
Both the estate and the district court failed to address the language contained in the written contract. The estate, in its brief on appeal, refers to the contract as an “alleged contract.” Riegel’s affidavit explains the matter thus:
“3. Your Affiant was present when M.W. Snook executed the alleged Employment Contract Agreement attached as Exhibit 1 to the Petitioners’ Brief. That the contract was explained to M.W. Snook, Kenneth Snook, Larry Snook and your affiant as the authorization of M.W. Snook to be billed for expenses monthly in addition to the ‘turn-key’ fee of Dan E. Turner for the bankruptcy proceeding of $5,000.00. That M.W. Snook during his lifetime, and Steven B. Riegel, as executor of the Estate of M.W. Snook, did pay such monthly expenses as they were billed pursuant to that agreement as explained. M.W. Snook did not get a copy of Exhibit 1.”
The remainder of Riegel’s affidavit clearly supports the view that the actual agreement was contrary to the written agreement. For example, Riegel explains in his affidavit that when he met with Dan Turner on April 1, 1991, Turner, presumably in reference to the September 6, 1990, petition to allow his claim, said that the filing was merely a legal maneuver:
“At that time they were told by Dan E. Turner that he knew the fee arrangement, but he only filed the claim in the probate court because in case there was any money left in the probate account, he didn’t want the bank to be able to get to it. At that time, the appeal of the Farmers State Bank of Bucklin in the bankruptcy court had not been decided. Again, Steven B. Riegel, Larry Snook and Kenneth Snook left the offices of Dan Turner feeling that the problem had been resolved and that Mr. Turner was just exercising some legal maneuver against the Farmers State Bank that they did not understand.”
Certainly, the district court had evidence before it that the written agreement did not accurately represent the agreement either (1) between the Turners and Snook or (2) between the Turners and Snooks estate. Again, Riegel in his affidavit advised the court that Dan Turner assured Snook the fee arrangement was for a flat $5,000 fee. There is evidence to support the finding the Turners assented to such a modification by their own statements to Snook and his family and by their statements in the “Unsworn Declaration under Penalty of Peijury by the Attorney for the Debtor,” which stated that the “compensation paid or promised” to be paid by Snook was $5,000. Documents the Turners submitted to the bankruptcy court belie their contention they had an hourly arrangement with Snook.
Regarding any oral agreement the estate may have made with the Turners, there is sufficient evidence to support the district court’s rejection of the Turners’ claims that the estate assured the Turners they would receive compensation for additional attorney fees.
Furthermore, the Turners’ failure to obtain bankruptcy court approval of an hourly fee arrangement supplies sufficient evidence to support the district court’s findings. The Turners argue in their brief on appeal that they did not need to get the bankruptcy court’s approval for fees to later claim them against the probate estate.
The Turners cite Matter of Hunt, 59 Bankr. 842 (Bankr. N.D. Ohio 1986). The court in Hunt considered an allowance of fees and expenses in a bankruptcy case under Chapter 7. Following the debtor’s discharge in Hunt, the attorney filed a motion for approval of more fees. The court first subtracted from the fees requested an amount representing the pre-petition work, finding these services were covered by an initial payment. The remainder of the hours of service' covered post-petition work “in connection with various reaffirmation agreements, the allowance of exemptions, redemption of personal property, and an adversary proceeding initiated by the Trustee objecting to the discharge of Debtor.” (Emphasis added.) 59 Bankr. at 843.
Initially, the Hunt court isolated and distinguished two questions, a distinction missed by the Turners. First, the issue arose whether the above fees were properly paid from the bankruptcy estate by an application to the court or whether the client should be billed. Second, the court then considered what would happen if the fees were not compensable from the bankruptcy estate but, rather, properly compensable from the debtor:
“It is the request for payment for these services which raises the issue whether these matters are appropriately a subject of an application to this Court, or are they, rather, to be billed to the client? If they should be billed to the client, to what extent is counsel required to disclose the billing to the Court and to what extent and under what circumstances does the Court have an obligation to review that billing?” 59 Bankr. at 843.
The Turners fail to consider the Hunt court’s distinction between the above two questions. The court first determined the services were personal to the debtor because the services failed to benefit the estate. Therefore, fees for these services were not compensable from the estate. 59 Bankr. at 843. The same appears in the present case. The work for which the Turners would like to bill Snook’s estate also involved the allowance of exemptions which benefitted Snook, not the bankruptcy estate. However, this was not the end of the inquiry in Hunt. The court then went on to answer the question of whether court approval was necessary for the fees which were compensable from die debtor personally. The court answered in the affirmative:
“The authority of the Bankruptcy Court to review compensation is a traditional power of the Court and is essential to avoid overreaching by a debtor’s attorney. [Citation omitted.] Thus, even in cases where services performed are not appropriately the subject of afee application under Section 330, counsel nonetheless has a duty to disclose to the Court, under 11 U.S.C. Sec. 329, the amount of compensation paid or agreed to be paid in connection with the bankruptcy proceedings. 11 U.S.C. §. 329(a).” (Emphasis added.) 59 Bankr. at 844.
The Hunt court found the attorney followed the dictate of 11 U.S.C. § 329 (1982) and therefore allowed the fees. 59 Bankr. at 844.
The Turners argue in their brief on appeal the services they performed were similar to those in Hunt, i.e., personal to the debtor and, therefore, argue they were not required to get the bankruptcy court’s approval. Again, this misses the point. Unless the rule is that services personal to the debtor need not be disclosed, and the Turners fail to cite any authority for this proposition which would be contrary to the rule in Hunt, the bankruptcy rules appear to clearly disapprove of fees which are not disclosed.
Furthermore, the bankruptcy rules require the attorney to update the information required to be disclosed by 11 U.S.C. § 329 (2000). See 11 U.S.C. § 329(a) and U.S. Bankruptcy Court Rule 2016(b) (2002). Without full disclosure as required in § 329(a) and supplemented through Rule 2016(b), the bankruptcy court has no capacity to know the reasonableness of the fees. It follows that it is improper for the Turners to try to collect these fees. Indeed, as the estate points out in its brief on appeal, the fees in this case amount to 19% of the probate estate.
In summary, the district court correctly determined the agreement was at all times a flat fee of $5,000. This finding is supported by the Turners’ own representations to the bankruptcy court that the agreement was for a flat fee of $5,000 and their failure to ever inform the bankruptcy court that the fee arrangement had changed. Riegel expressly denied the Turners’ allegations. Evaluation of witness credibility is for the finder of fact to determine. See Griffin v. Dale Willy Pontiac-GMC Truck, Inc., 268 Kan. 33, 34, 991 P.2d 406 (1999).
Next, Turner argues that they were entitled to notice of the filing of the petition to probate under K.S.A. 59-709(b). It provides:
“(b) The personal representative of a decedent’s estate shall give actual notice to known or reasonably ascertainable creditors prior to the expiration of the non-claim statute.”
K.S.A. 59-2236(b) provides:
“(b) Actual notice required by subsection (b) of K.S.A. 59-709, and amendments thereto, may include, but not be limited to, mailing a copy of the published notice, by first class mail, to creditors within a reasonable time after their identities and addresses are ascertained.”
It is undisputed that the Turners were not given actual notice, but they failed to make a credible argument that the estate knew of their claim. Instead, they summarily announced, without citing any authority, that the estate knew of their claim. It appears the executor of Snook’s estate did not know of the claim.
In Phillip Turner’s March 5,1990, letter to Riegel updating Riegel on the proceedings in bankruptcy court, he failed to mention the additional attorney fees. This letter was dated prior to the April 1, 1990 expiration of the claim period. Turner’s April 17, 1990, letter to Voss, after the end of the claim statute, appears to first inquire about the attorney fees:
“I do not know where we stand in regard to Maynard Wayne Snook and the estate concerning payment of the attorney fees and expenses which have been incurred during the bankruptcy proceeding and the appeal of this proceeding. I do not know if we need to make a claim in the probate estate as to those attorney fees and expenses that remain unpaid by Maynard Snook. In addition, I do not know if we need to have the probate estate, through the Probate Court, approve an application for our employment to continue representing Maynard Snook in his bankruptcy proceeding now that he is deceased. We have gone ahead and filed the brief due to the time constraints in order to protect the interest of Maynard Snook and, in fact, responded to the Trustee’s Motion To Dismiss successfully.”
Thus, it is clear that the estate knew of the Turners’ claim after the end of the claim period, and not before.
The estate, in its brief on appeal, also argues that the April 17, 1990, letter was the first mention of additional attorney fees. This view is further bolstered by the fact that Dan Turner s March 31, 1990, letter to Riegel was a bill for $188.24 for expenses associated with the bankruptcy case. The bill was not for hourly attorney fees. The written notation on the letter indicates it was paid, and Turner does not assert on appeal the $188.24 was not paid. Thus, it is reasonable to assume the estate believed it was only responsible for the expenses and not additional attorney fees. If hourly fees were due, the Turners should have mentioned them earlier.
Other correspondence contained in the record on appeal is ambiguous. One letter to Voss inquired regarding attorney fees, but it is undated. Thus, it is difficult to draw any conclusions from that communication. In Dan Turner’s June 4, 1990, letter to Voss, he does not mention attorney fees. Voss’ letter the same date to Turner solicits Turner’s advice on how to proceed in probate court without disrupting matters in bankruptcy court.
Last, that tire order confirming the Chapter 12 plan required approval of attorney fees bolsters the estate’s argument it did not know of the Turners’ claim. Had the Turners’ had a claim, they would have first sought bankruptcy court approval.
The estate asserts the Turners were not known or ascertainable creditors because they had never “talked with the executor or the attorney for the estate about additional attorney fees” during the claim period. Since the running of the claim period was April 1, 1990, the issue is whether the estate had notice of the Turners’ intention to collect attorney fees for the amount above $5,000. The Turners’ brief on appeal lacks any analysis of this particular question and gives this court no reason to suspect the lower court erred in its decision that the Turners were not known or reasonably ascertainable creditors. The district court did not err in denying the Turners’ claim.
Last, the Turners argue the estate should be estopped from objecting to the additional fees. According to the Turners, Voss represented in February of 1990, that he would take no action in the probate estate until the federal district court had ruled on the trustee’s motion to dismiss, which was based on Snook’s death. Furthermore, the Turners assert both Riegel and Voss orally indicated Snook’s probate estate would pay the Turners’ fees and that the Turners did not have to do anything to protect their claim for attorney fees until the proceedings in the bankruptcy court were terminated. The Turners imply they would not have continued to work in the bankruptcy case had they known of Voss’ and Riegel’s intentions not to pay attorney fees based on an hourly rate. Lastly, the Turners assert Riegel was motivated to mislead the Turners into continuing to work because without success in bankruptcy court, the probate estate would have had significantly fewer funds.
The Turners cite as their only authority for this argument Gillespie v. Seymore, 250 Kan. 123, 823 P.2d 782 (1991). The Gillespie court had the following to say about equitable estoppel:
“Equitable estoppel is the effect of the voluntaiy conduct of a party whereby it is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party seeking to invoke equitable estoppel must show that the acts, representations, admissions, or silence of another party (when it had a duty to speak) induced the first party to believe certain facts existed. There must also be a showing the first party rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. There can be no equitable estoppel if any essential element thereof is lacking or is- not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction.” 250 Kan. at 129-30.
Ultimately, the Gillespie court held the doctrine inapplicable. 250 Kan. at 131-32.
This last argument fails as well. As the district court found, the estate had no notice that the Turners would assert any attorney fees above the $5,000 already paid. The Turners must show the estate acted in a way that made the Turners believe they would be paid the hourly attorney fees. This has not been shown. As the analysis above shows, the Turners represented to the bankruptcy court that the fee arrangement was for a flat $5,000. The Turners never supplemented this information to the bankruptcy court. Riegel in his affidavit asserted to the district court that he personally believed the arrangement was for a flat $5,000 fee and disclaimed that he agreed to any variation of this arrangement. Again, evaluation of witness credibility is within the prerogative of the district court. See Griffin, 268 Kan. at 34.
Affirmed.
Davis, J., not participating.
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|
The opinion of the court was delivered by
Six, J.:
This is a post-settlement controversy, initially between two sibling plaintiffs, Warren Brown Gillespie (Warren) and Polly G. Townsend (Polly). With the death of the sibling plaintiffs in 1998, the controversy has become a battle between Warren’s estate (Warren) administered by his son James Gillespie, executor, and the Polly G. Townsend Revocable Trust (Polly). Warren and Polly disagree on who is responsible for litigation expenses incurred in a contingent fee case resulting in a $2,250,000 settlement recovery. The district court ruled that the expenses should be shared equally and ordered the disputed funds held in escrow distributed to Warren’s Estate. Polly, objecting to the sharing decision, appeals.
Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from the Court of Appeals on our own motion).
Polly advances the following issues in her appeal:
Whether the district court: (1) was an appropriate forum for determining the sibling dispute under Kansas Rules of Professional Conduct (KRPC) 1.5(e) (2001 Kan. Ct. R. Annot. 346), (2) erred in finding that the KRPC were, as a matter of law, incorporated into Polly’s contingent fee agreement, (3) erred in finding that Warren and Polly reached an oral agreement to share litigation expenses on an equal basis in the event of recovery, and (4) erred in finding that Polly was responsible for attorney fees and expenses incurred in the bankruptcy litigation.
We reverse, holding that: (1) the district court, under the guise of a KRPC 1.5(e) fee dispute, was not the proper forum to resolve the controversy here, and (2) one client under KRPC 1.5 has no standing to test the reasonableness of another client’s separate attorney fee contract. Our forum resolution negates the need to address the other issues raised by Polly.
The Gillespie family litigation has had an extensive history. See Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991) (Gillespie I); 253 Kan. 169, 853 P.2d 692 (1993); 255 Kan. 774, 877 P.2d 409 (1994); 263 Kan. 650, 952 P.2d 1313 (1998) (Gillespie IV). The factual background of the family controversy is set forth in Gillespie I, 250 Kan. at 125-29. More recently, we found a lack of appellate jurisdiction in Gillespie IV, because of an improper and untimely interlocutory appeal involving the current dispute. 263 Kan. at 656-57. The other Gillespie appeals involved issues unrelated to the sibling controversy presented here.
FACTS
Warren and Polly, as remainder beneficiaries, under a trust established by their grandfather in the mid-1950’s, sought an accounting including punitive damages against co-trustees (and others). The litigation also concerned various breach of trust allegations. Warren and Polly were represented by Glenn Young and Jerry Bogle of the law firm Young, Bogle, McCausland, Wells, & Clark, P.A. (Young, Bogle), of Wichita. Each client entered into a separate and different contingent fee agreement with the firm.
The separate contingent fee agreements differed in two respects. First, Pofiy had crossed out and initialed the phrase, “but [Young, Bogle] shall be reimbursed for all out-of-pocket expenses incurred in die prosecution of said suit and claim.” Second, Young, Bogle’s contingent share of any recovery was 45% in Warren’s agreement and 50% in Polly’s.
On March 13, 1988, Polly signed her crossed-out contingency fee contract and mailed it back to Bogle. After receiving the modified contract, Bogle met with Warren and Warren’s son James. It was agreed that Warren would enter into a separate contract providing a contingent fee percentage of 45% if the case was tried and appealed. Warren requested a lower fee scale in return for his agreeing to advance the expenses of the lawsuit. During litigation, Warren paid $480,521.09, the total of all costs and expenses in the state litigation and later bankruptcy proceeding. The commitment to advance expenses was not in Warren’s fee agreement; however, the agreement provided that Warren would reimburse expenses in the event there was no recovery. Neither fee agreement specified how any recovery would be divided between the two siblings. Warren signed his agreement on April 11, 1988.
The damage claim against the co-trustees and related parties for investment losses incurred by the trust was eventually tried. Warren and Polly were awarded judgment in December 1990 in excess of $4,000,000. Liability and the compensatory damage awards were upheld in Gillespie I. 250 Kan. at 128. The individual defendants filed bankruptcy. Young, Bogle secured an oral agreement from Warren to pursue recovery of the judgment in the bankruptcy lit igation on an hourly basis. Apparently, Young, Bogle made no separate agreement with Polly regarding the bankruptcy. The parties settled the litigation with the underlying defendants for $2,250,000. Young, Bogle contended that its bankruptcy fees became expenses of litigation under the contingent fee agreements. However, the bankruptcy fees were not deducted from the recovery as expenses before calculating Young, Bogle’s contingent fee.
Young, Bogle sought to divide the settlement proceeds between Warren and Polly. A dispute arose concerning die payment of litigation expenses. Polly observed that her fee agreement contained no provision for reimbursement of out-of-pocket expenses incurred by Young, Bogle. Young, Bogle, on behalf of Warren, asserted Polly had agreed to share one-half of the “out-of-pocket” litigation expenses. The amounts not in controversy'were distributed. Polly received $395,243; however, she claims she is entitled to $562,500 (50% of $1,125,000). Young, Bogle holds the difference, $167,257, and interest, in escrow. Warren claims that the $167,257 is his as reimbursement of Polly’s share of the litigation costs and expenses that he paid. (The record is silent on why Warren’s claim is only for $167,257, as one-half of the total expenses, $480,521.09, is $240,260.54.)
Warren, with Young, Bogle as his counsel, filed a motion under KRPC 1.5(d) (2001 Kan. Ct. R. Annot. 345), requesting that the district court divide the litigation expenses between himself and Polly. It appears that the motion should have referenced KRPC 1.5(e). Warren alleged that Polly had orally agreed that she would share the litigation expenses equally with him in the event of an ultimate recovery (although she would not be responsible for any expenses if there was no recovery.) Polly, now represented by a different firm, responded to the motion by alleging: (1) she had not agreed to share responsibility for any litigation expenses; (2) a KRPC 1.5(d) motion was not proper for resolving her alleged fee dispute; (3) the controversy did not involve a fee dispute between an attorney and client, but rather an alleged oral contract between two clients; (4) she had not requested the district court under KRPC 1.5(e) to review her fee contract with Young,Bogle; (5) Warren’s motion did not allege any fee dispute between her and Young, Bogle; (6) Young, Bogle had a conflict of interest in representing Warren because his position was now adverse to hers; and (7) a proper forum for Warren’s oral contract claim is a separate lawsuit by Warren against her.
Over Polly’s objection, Young, Bogle moved for, and the district court approved, withdrawal as Polly’s counsel due to a conflict of interest. Polly had contended that Young, Bogle should have withdrawn from representing either party, as the firm now had a conflict of interest in representing Warren against her, a former client, under KRPC 1.7 (2001 Kan. Ct. R. Annot. 354).
Sedgwick County District Judge Paul Buchanan (1) withheld ruling on Polly’s motion to disqualify Young, Bogle, (2) decided that Warren’s KRPC 1.5(d) motion was proper, (3) held that the KRPC was incorporated as part of the contingent fee agreement between Polly and Young, Bogle, and (4) decided Polly was required to pay litigation costs and expenses, which should be deducted before the contingent fee is calculated. Judge Buchanan did not adjudicate the reasonableness of the fees and expenses or decide what portion was Polly’s responsibility.
The judgment was certified under K.S.A. 60-254(b), and Polly appealed. Following dismissal of Polly’s appeal for lack of appellate jurisdiction (Gillespie IV), the parties stipulated in a prehearing order to the issues which remained for determination. The stipulated issues were: (1) the reasonableness of litigation expenses; (2) the existence of an expense sharing agreement between Warren and Polly, and (3) which expenses, if any, should be paid by Polly. The remaining issues stemming from Judge Buchanan’s previous ruling were preserved for appeal. The issues set out in the prehearing order were tried in an evidentiary hearing before Judge Keith Anderson in December 1999.
Judge Anderson addressed the state court litigation expenses and bankruptcy fees and expenses separately. He ruled that Polly was liable for one-half of the state court litigation expenses on alternative grounds. First, the KRPC was incorporated into Polly’s fee contract and required the payment of expenses of litigation. Second, an oral agreement existed between Warren and Polly to share equally the expenses of litigation if there was a recovery. Judge Anderson concluded that the bankruptcy litigation was not covered by Polly’s contingent fee agreement but that Polly was responsible for one-half of the attorney fees and expenses as a “matter of fairness and equity.”
DISCUSSION
Polly has consistently contended throughout this litigation that under Warren’s KPRC 1.5(d) motion, the district court was not a proper forum to resolve this sibling dispute. We agree. This issue involves a question of law, over which we have unlimited review. See Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).
The Model Rules of Professional Conduct (formerly known as MRPC; now KRPC), were adopted in Kansas effective March 1, 1988, just days before the execution of JPolly’s contingency fee contract. See Ryder v. Farmland Mut. Ins. Co., 248 Kan. 352, 361, 807 P.2d 109 (1991).
KRPC 1.5(e) says:
“Upon application by the client, all fee contracts shall be subject to review and approval by the appropriate court having jurisdiction of the matter and the court shall have the authority to determine whether the contract is reasonable. If the court finds the contract is not reasonable, it shall set and allow a reasonable fee.” (2001 Kan. Ct. R. Annot. 346.)
Here, a dispute arose between Warren and Polly, two of Young, Bogle clients, over the division of litigation expenses incurred in the settlement recovery of $2,250,000 in the underlying lawsuit. The dispute was not a fee contract dispute between attorney and client.
Ryder, 248 Kan. 352, controls. In Ryder, we noted that KRPC 1.5(e) was drafted to provide the client with a mechanism for review of a disputed fee contract. 248 Kan. at 366. Ryder involved a dispute between two sets of attorneys. A California law firm, Fisher, Weathers, and Geeting (FW&G), referred a personal injury law suit to a Kansas law firm, Wallace, Saunders, Austin, Brown, and Enochs (Wallace, Saunders). The case resulted in a $2,500,000 settlement. Wallace, Saunders handled the case based on a one-third contingency fee. FW&G contended that it was entitled to a referral fee out of that contingency. Wallace, Saunders denied that any referral fee was owed.
Wallace, Saunders filed a post-setdement motion in the district court seeking to have the court approve its attorney fees and to resolve the dispute. FW&G filed a motion to dismiss, arguing that the controversy over the referral fee was limited to the two law firms and that the court lacked personal jurisdiction over FW&G. FW&G also argued that the parties to the personal injury lawsuit were not the real parties in interest in the dispute over the division of the one-third contingent fee. The district court held that FW&G was not entitled to a referral fee.
We agreed with FW&G’s real-party-in-interest argument. 248 Kan. at 354. We noted that Ryder, die plaintiff in the personal injury suit, did not dispute the referral fee. In addition, Ryder did not have the substantive right to enforce the action, and he had no legal interest in the outcome of the attorney fee dispute. We concluded that the real parties in interest were the contesting law firms, not the parties to the suit. 248 Kan. at 366. The case was reversed and remanded with directions to dismiss. 248 Kan. at 368.
In contrast to Ryder, Warren reasons that the dispute here is between the parties and that it also involves the interpretation of their fee agreements. Thus, he contends that the district court retained subject matter jurisdiction and personal jurisdiction over the parties.
Polly points out that she has no dispute with Young, Bogle concerning her contingency fee contract. However, this assertion is puzzling, since Polly admits that Young, Bogle has refused to distribute proceeds to which she feels she is entitled under the contingent fee contract.
What we find persuasive is Polly’s consistent multiple assertions that (1) Warren cannot, under 1.5(e), test the reasonableness of her fee contract with Young, Bogle; (2) she has made no such request; (3) the alleged oral agreement between Warren and Polly is not part of either contingent fee contract and, thus, was not properly reviewed under the KRPC 1.5(e) format; and (4) Warren’s initial KRPC 1.5 motion triggering this litigation alleged no dispute between Polly and Young, Bogle.
Polly argues that under Ryder, KRPC 1.5 has no application to a dispute arising out of an alleged oral agreement between Warren and Polly. We agree. She contends that the proper forum for resolving the oral agreement dispute would be a separate action by Warren against Polly.
Warren, in his brief, focuses on what he believes this case is about, stating; “At this point this is a battle between two clients about whether the expenses of litigation which resulted in a substantial benefit to both should be shared, or whether they should all be borne by one party.”
KRPC 1.5(e) does not provide a judicial battlefield for resolving a controversy between successful plaintiffs over an alleged oral agreement to share in paying litigation expenses. The district court had no authority under a KRPC 1.5 motion filed by Warren to address the issue of an alleged oral agreement between Warren and Polly.
Polly did not apply to the district court under KRPC 1.5(e) for a determination of the reasonableness of her fee contract with Young and Bogle.
The motion that initiated this litigation filed by Young, Bogle, the firm that had represented both Polly and Warren, opened with the following:
“COMES NOW Warren Brown Gillespie and moves the Court for a determination of the division of expenses between plaintiffs Warren Brown Gillespie and Polly Gillespie Townsend in the subject action, pursuant to [Kansas] Rules of Professional Conduct Rule 1.5(d).” (Emphasis added.)
We said in Ryder,
“[K]RPC 1.5(e) states: ‘Upon application by the client, all fee contracts shall be subject to review and approval by die appropriate court having jurisdiction of the matter and the court shall have the authority to determine whether the contract is reasonable. (Emphasis added.)
“[K]RPC 1.5(e) was drafted to provide die client a mechanism for review of a disputed fee contract.” 248 Kan. at 366.
Warren would have standing as a client to apply for a district court determination under 1.5(e) to test whether his Young, Bogle contract is “reasonable.” He had no standing under a KRPC 1.5(e) application either to test the reasonableness of Polly’s separate fee contract or to seek resolution of his oral contract dispute with Polly. See K.S.A. 60-217(a).
We reverse and set aside the judgment of the district court.
Abbott, J., and Davis, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Celester McKinney appeals from his conviction of premeditated first-degree murder in the death of Greg Miller. He contends (1) the trial court erred in denying his motion for new trial based on newly discovered evidence, (2) the prosecutor committed misconduct in presenting false witness testimony, (3) the trial court erred in responding to a jury question when the defendant was not present, (4) the trial court erred in admitting certain hearsay statements, and (5) the prosecutor’s closing argument violated his constitutional rights. Finding no reversible error, we affirm.
Celester McKinney, his brother Dwayne McKinney, and his cousin Brian Betts were all charged with first-degree premeditated murder of Greg Miller. Based upon a pretrial motion to sever, the defendant, his brother, and his cousin were granted separate trials. Defendant Celester McKinney was found guilty, and we deal with his appeal in this case. Brian Betts was also found guilty, and his appeal was decided by this court in State v. Betts, No. 84,112, filed this date. Dwayne McKinney was found not guilty.
The major players involved in this appeal are Celester McKinney, Dwayne McKinney, and Brian Betts. The main witness for the prosecution was Carter Betts, who is the uncle of the three codefendants. Jimmy Spencer, Jr., uncle of the victim, also testified on the part of the State. Other witnesses who testified at trial are identified below.
In the early morning hours of December 29, 1997, police in Kansas City, Kansas, responded to a report of shots fired, finding the body of Greg Miller. Greg had been shot 18 times with both a shotgun and a rifle. A trail of blood led to the body. Spent 12- gauge shotgun shells and empty rifle shell casings were found near the body. A cleaning rod from a rifle was also discovered near the scene.
Alfred Burdette, Jr., the person who reported the shots, testified he heard gunshots at approximately 3 a.m. He looked outside and saw a person walking and firing a gun. Anojther person on the other side of the street was also firing. At first, Burdette thought the persons were shooting at each other but then he noticed they both ran off together in the same direction. Burdette testified at trial he saw one of the shooters enter the rear gate at 2917 N. 5th. He stated the person went to the door, hesitated, and went in. Officer Keto Thompson, who was one of the officers responding, testified that he talked to Burdette. According to Officer Thompson, Burdette said the person went between the houses but Burdette did not know whether the person had actually gone into the house in question.
Carter Betts provided the testimony linking the defendant to the crime. According to Carter’s testimony, his three nephews: the defendant, Dwayne McKinney, and Brian Betts, lived with and worked for him. The Betts family owns the house at 2119 N. 5th, which is divided into several different apartments.
Carter testified that he, the defendant, and Dwayne were cleaning a building on the night in question and returned home between 11:30 p.m. and midnight. Carter went to sleep, while the defendant and Dwayne watched television. At approximately 3 a.m., Carter heard a number of gunshots. He testified he then heard the front door open and close. He went downstairs to investigate and found the defendant, Dwayne, and Brian. A pistol-grip shotgun and an assault rifle lay at the feet of Dwayne and Brian.
According to Carter, when he asked what happened, the defendant replied: “We shot that Greg.” The defendant explained to Carter that they suspected Greg of breaking into and burglarizing Brian’s apartment. The defendant told Carter he had gone to talk to Greg and brought him back into the alley behind the house. When Greg denied breaking in, Dwayne raised a gun to shoot him. However, the gun jammed and Greg began to run away. At this point, the defendant told Dwayne and Brian to stop Greg because they could not let him live to be a witness. Dwayne and Brian began firing. Their shots knocked Greg down. The defendant told Carter that Brian then went over to Greg and finished him off.
Carter testified that when the police questioned him regarding the incident, he told them his nephews had been in bed asleep at the time the shots were fired. Later, however, the police questioned him at the station and he changed his stray. Carter stated that he decided to tell the truth because the word on the street implicated him in the murder and he was scared.
Carter stated that he was testifying under duress, as it was difficult to testify against his nephews. On cross-examination, he admitted signing a letter stating he wanted to “discredit” his testimony. He stated his sister, the defendant’s mother, typed the letter for him to sign. He stated he signed the letter because he did not want to testify.
Jimmy Spencer, Jr., also provided information linking the defendant to the crime. He stated he woke up around 3 a.m. in order to get something to eat and found the soda pop he put in the refrigerator was gone. He woke Greg, who was living with him, and asked him if he had taken the soda pop. Greg confirmed he had, so Spencer sent Greg out to buy a soda pop from a nearby machine. When Greg returned, he told Spencer that a person named Les wanted to talk to him. Spencer testified that he thought Greg was referring to the defendant, Celester McKinney, as Les. Greg left to find out what Les wanted. Spencer stated that he heard gunshots a few minutes later. He looked out the window and saw someone shooting toward the ground. Spencer dressed and went to investigate whereupon he found Greg’s body. Soon after, the police arrived.
On the basis of this evidence, the defendant was convicted of first-degree premeditated murder. He filed a motion for a new trial which was denied, and then a notice of appeal. Soon after, the defendant filed a motion for a new trial based on newly discovered evidence. The defendant’s motion alleged Carter had recanted his testimony during a posttrial hearing in Brian’s trial, which was based on the same incident. The defendant’s motion also alleged the district attorney had suborned perjury in the defendant’s case, both from Carter and also from Officer Thompson concerning what Burdette told him the night of the incident. Because the defendant had already filed his notice of appeal, this court remanded the matter to the trial court for a hearing on the motion.
Initially, Officer Thompson testified concerning Burdette’s statement. Officer Thompson confirmed he testified at trial that Burdette said he did not know if the shooters had gone into the house. He also testified his report stated Burdette told bim the shooters ran down the alleyway between the two houses.
The hearing then moved to Carter’s recantation. Carter testified that after the first interview during which he told the police he had gone back to sleep after hearing gunshots, the police kept pressing him. Carter stated the stoiy he told police about his nephews being involved in the shooting was a He and was based on what police had told him about the murder and what he had heard around the neighborhood. He testified that he had lied because he was afraid he might be connected to the murder.
Carter stated that the night before the prehminary hearing in the defendant’s case, he met with prosecutor Daniel Cahill and Cahill told him what his testimony should be. Carter stated that during Dwayne’s trial, he testified he was lying, at which point the prosecutor asked for a recess. According to Carter, Cahill threatened him during this recess.
Carter testified that the truth was that he had heard the gunshots but went right back to sleep. He testified he did not know who killed Greg.
Prosecutor Cahill testified on behalf of the State at the hearing. He stated that while he had talked to Carter the night before the prehminary hearing, he did not coach him as to how to testify. He stated Carter was jittery and did not want to testify but that Carter never stated his testimony would not be true. Cahill also stated Carter told him prior to the defendant’s trial that Cahill should not call him to testify because Cahill would not like what would happen. Regarding the incident during Dwayne’s trial, Cahill testified it occurred during a motion prior to trial and Carter simply stopped answering questions. Cahill testified that a recess was taken and he met with Carter and Carter’s mother. Cahill denied threatening Carter.
The State also presented the testimony of Ray McKinney, a Kansas City, Kansas, police officer. Ray is the defendant’s uncle. Ray stated he received a telephone call from Patricia Betts, who is the defendant’s mother. Patricia told Ray she thought her boys were involved in the Greg Miller murder.
The trial court found Carter’s recantation was not credible. The court further found that the prosecutor did not present perjured testimony at trial. Accordingly, the trial court denied the defendant’s motion for new trial.
Denial of New Trial — Recanted Testimony of Carter Betts
Carter’s testimony not only linked the defendant to the crime but provided the basis for the defendant’s conviction. Without his testimony there would have been no evidentiary basis for the defendant’s murder conviction. After trial, Carter recanted his trial testimony, thus providing the defendant with new evidence that, if believed, would exonerate him. The trial court, upon hearing the defendant’s motion for new trial, concluded Carter’s recantation was not credible and provided no basis for a new trial.
K.S.A. 22-3501 provides that a court may grant a motion for a new trial based on the ground of newly discovered evidence. There is a two-part test for determining whether a new trial is warranted based on newly discovered evidence. First, the defendant must establish that the newly proffered evidence is indeed “new,” in that it could not, with reasonable diligence, have been produced at trial. Second, the evidence must be of such materiality that there is a reasonable probability that the newly discovered evidence would produce a different result upon retrial. State v. Moncla, 269 Kan. 61, 64, 4 P.3d 618 (2000). The granting of a new trial is a matter within the discretion of the trial court. State v. Reed, 256 Kan. 547, 560, 886 P.2d 854 (1994).
While the State argues that the recanted testimony of Carter was not newly discovered evidence primarily because the defendant knew Carter’s trial testimony was false at the time given, it is clear that until Carter recanted his testimony after trial, the defendant could not have known about the recanted testimony. We conclude that the recanted testimony of Carter was newly discovered and could not, with reasonable diligence, have been produced at trial.
New trials on grounds of newly discovered evidence are not favored, and such motions are to be viewed with caution. State v. Thomas, 257 Kan. 228, Syl. ¶ 2, 891 P.2d 417 (1995).
The standard applied by the trial court for granting a new trial based on recanted testimony is well established. Where a new trial is sought on the basis of recanted testimony of a prosecution witness, the weight to be given such testimony is for the trial court to determine. The trial court is required to grant a new trial only when it is satisfied the recantation of the witness’ testimony is true and material. Appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. See State v. Norman, 232 Kan. 102, 109, 652 P.2d 683 (1982).
In claiming that the trial court abused its discretion, the defendant argues it was logical for Carter to place the blame on his nephews because the talk in the neighborhood was that Carter was somehow involved. The defendant argues Carter was a logical suspect because he owned the house that the victim was alleged to have burglarized and one shooter was allegedly seen entering. He also argues Carter was pressured by police, threatened with prosecution, and could not have known that his testimony would provide the only evidence against his nephews. The defendant also argues that Carter’s original testimony was not credible because he testified that the front door to his house had been opened, while Burdette testified he saw one of the shooters enter through the back door of the house.
The evidence produced upon hearing established that Carter was under pressure from his family to recant. As mentioned, the defendant’s mother facilitated Carter’s attempts to discredit his testimony by typing the letter for him to sign. Further, the trial court had the opportunity to observe Carter’s testimony on approximately six occasions during the course of three trials. The court found that Carter’s demeanor was not one of someone forced to give false testimony because of a threat of prosecution, but it was the demeanor of someone who was reluctant to implicate his nephews. The defendant fails to establish that the trial court abused its discretion in concluding Carter s recantation was not credible. We conclude the trial court did not err in denying the defendant’s motion for a new trial based upon the recantation.
Perjured Testimony
The defendant also contends the prosecutor presented perjured testimony through Carter and Officer Thompson, and his conviction must be reversed for that reason. A conviction obtained by the introduction of perjured testimony violates a defendant’s due process rights if (1) the prosecution knowingly solicited the perjured testimony, or (2) the prosecution failed to correct testimony it knew was perjured. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). However, the defendant in this case failed to establish the testimony was in fact perjured.
While the defendant claimed Carter repeatedly told the prosecutor his testimony was false, the prosecutor denied Carter made any such representation. The trial court found that Carter testified truthfully and that it was his recantation that was not credible.
The defendant alleges Officer Thompson’s testimony was perjured because it differed from his written report. At trial, Thompson testified Burdette told him one of the shooters ran into the alleyway between Carter’s house and another house and that Burdette did not know if the shooter went inside the house. Thompson’s report stated only that Burdette told him that the shooter ran down the alleyway. However, because Thompson failed to record Burdette’s statements regarding whether the shooter went inside the house does not mean Burdette did not make the statement. The evidence establishes that Thompson was a rookie officer at the time of the incident and his report may not have been complete. Further, Burdette testified he told Thompson the shooter did in fact go into the house.
Based upon the record, the evidence fails to establish that the prosecutor presented false testimony.
Presence of the Defendant for Jury Question
The defendant also argues the trial court erred in conducting a read-back of testimony requested by the jury. He contends the trial court violated his constitutional rights by clarifying the jury’s request outside of his presence. The further argues the read-back ultimately approved by the trial court distorted the testimony.
During deliberations, the jury sent a note to the trial court which requested “Carter Betts’ statement(s) about the conversation in the basement.” The trial court, outside the presence of the defendant and attorneys, directed the bailiff to ask the jury to be more specific. The jury responded: “We want the trial testimony of Carter Betts’ conversation in the basement. Also the testimony of Carter Betts’ preliminary hearing of the conversations in the basement.” The trial judge proposed (1) to read back to the jury the portions of Carter’s testimony on direct and cross-examination concerning the conversation in the basement, (2) to inform the jury that the prehminary hearing testimony had not been introduced in the case, and (3) to ask the jury if that addressed their question.
Defense counsel strenuously objected, arguing that the jury actually wanted Carter’s testimony as well as the statement he made to police. That statement was substantially similar to Carter’s testimony except that he did not tell police the defendant went to get Greg, the victim. Defense counsel contended that because he had stressed the difference between the statement and the trial testimony in closing, this was undoubtedly what the jury wanted.
The record confirms the defendant’s contention that defense counsel did indeed stress the difference between Carter’s statement and testimony in discussing Carter’s credibility and the defendant’s culpability. This emphasis supports the contention that the difference between Carter’s statement and the testimony was an important issue for the defendant. However, the trial court went to great lengths to determine what evidence the jury actually wanted read back. A trial court has the discretion to clarify the jury’s read-back request where it is unclear. State v. Juiliano, 268 Kan. 89, 94, 991 P.2d 408 (1999). Contrary to the defendant’s assertion, the jury confirmed its interest in the actual testimony regarding the incident in the basement and did not reference the defendant’s statement to police despite being given every opportunity to do so. While it was clearly error for the trial court to attempt to clarify the request outside the presence of the defendant and his counsel, under the circumstances, the error was harmless.
The trial court determined it would follow its proposal and read back Carter s testimony. The trial court explained to the jury that the testimony from the preliminary hearing was not admitted into evidence and Carter s direct and cross-examination would be read back. The trial court then asked the foreman of the jury: “Is that what you want to hear?” The foreman replied that it was. The trial court then asked: “Is there anything else that you wanted to hear that was contained in this note?” The foreman answered: “No. I think you touched on the two things we want to hear, Mr. Betts’ testimony what happened — what he said in the basement, his testimony and the two lawyers were talking.” The trial court then clarified: “The direct examination?” The foreman stated: “Right, exactly, sir.” The court again clarified: “When Mr. Cahill asked him questions and then when Mr. Burmaster cross-examined, that’s the testimony that you were interested in hearing?” The foreman replied: “Yes, sir.” Following the read-back, the trial court again asked if the read-back satisfied the jury’s question. The foreman answered: “I believe that’s sufficient, Your Honor.”
The defendant’s first complaint with the trial court’s procedure is that the trial court communicated with the jury outside his presence when it sent the bailiff in to ask the jury to clarify its original request. K.S.A. 2000 Supp. 22-3405, as well as the Sixth Amendment Confrontation Clause and the Fourteenth Amendment Due Process Clause of the United States Constitution, require the defendant’s presence at every critical stage of a trial, including whenever the trial court communicates with the jury. State v. Bell, 266 Kan. 896, 919-20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). Similarly, K.S.A. 22-3420(3) requires that once a jury has begun deliberations, any questions concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is voluntarily absent. 266 Kan. at 919. Under such circumstances, the defendant was required to be present, and the trial court’s failure to do so violated the defendant’s constitutional right to be present. 266 Kan. at 919-20.
This issue is subject to the harmless error analysis. Thus, the error will be declared harmless if this court concludes that the error had little, if any, likelihood of having changed the result of the trial. 266 Kan. at 920.
The defendant argues had he been present, he might have suggested a response that would clarify whether the jury actually wanted to compare Carter’s statement to the police with his testimony at trial. He contends the response by the trial court unduly emphasized the trial testimony rather than the statement and might have persuaded the jury from abandoning its request for his statement to police. According to the defendant, his statement was critical because it did not suggest that he went to get Greg and, therefore, reduced his culpability for the crime and could have resulted in his acquittal. The defendant argues that his defense counsel stressed the difference between Carter’s statement and testimony at closing, which showed its importance.
These arguments notwithstanding, we are convinced the trial court went to great lengths to provide the jury with the information it requested. Error is established, but under the circumstances, it was harmless.
Hearsay Statements Under K.S.A. 2000 Supp. 60-460(1)
The defendant also argues the trial court erred in admitting the hearsay statements allegedly made by the victim before his death, wherein the victim allegedly told his uncle that Les wanted to talk to him. The defendant contends the State failed to show the statements bore sufficient indicia of reliability.
At issue is Greg’s statement to his uncle, Jimmy Spencer, that Les wanted to talk to him and he was going to see what Les wanted. Spencer introduced this statement. The statement is important because it connects the defendant to Spencer’s testimony that indicated the Les to whom the statement referred to in the plan to lure Greg out of the house was the defendant. Prior to trial, the defendant filed a motion in limine to prevent the State from presenting Greg’s statement on the grounds that it did not fall within an exception and did not bear sufficient indicia of reliability. At the hearing, defense counsel asserted the statement did not bear suf ficient indicia of reliability because Spencer was not reliable. However, the trial court ruled the statement admissible pursuant to K.S.A. 2000 Supp. 60-460(1), as evidence of Greg’s “existing state of mind and as to what he was doing and where he was going and things of that nature.” At trial, defense counsel renewed his objection but was overruled.
K.S.A. 2000 Supp. 60-460(1) provides an exception to the hearsay rule for statements of physical or mental condition, including the declarant’s existing state of mind and statements of intent, plan, and motive. The defendant does not dispute that the physical or mental condition exception applies to Greg’s statement. However, the Confrontation Clause of the United States Constitution, as well as § 10 of the Kansas Constitution Bill of Rights, also establishes other requirements with regard to hearsay. In State v. Bratt, 250 Kan. 264, Syl. ¶ 1, 824 P.2d 983 (1992), we stated:
“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, die witness’ statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within 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.”
The defendant claims K.S.A. 2000 Supp. 60-460(1) is not a firmly rooted hearsay exception, citing generally State v. Todd, 24 Kan. App. 2d 796, 803, 954 P.2d 1, rev. denied 264 Kan. 824 (1998). Todd does not stand for this proposition. Instead, the question in Todd was whether the exception in K.S.A. 60-460(l)(2), allowing certain doctor-patient communications for the purpose of treatment, extended to statements relative to the cause of the victim’s injury. The Court of Appeals ruled it could not under the plain language of the statute. 24 Kan. App. 2d at 804. Whether the hearsay exception was firmly rooted was not at issue.
While this court has not expressly addressed the question, other courts that have done so have ruled that the state of mind exception to hearsay, such as found in K.S.A. 2000 Supp. 60-460(1), is a firmly rooted hearsay exception. See Lenza v. Wyrick, 665 F.2d 804, 811 (8th Cir. 1981); Moore v. Reynolds, 153 F.3d 1086, 1107 (10th Cir. 1998); Wyatt v. State, 981 P.2d 109, 115 (Alaska 1999); State v. Wood, 180 Ariz. 53, 64, 881 P.2d 1158 (1994); People v. Waidla, 22 Cal. 4th 690, 725, 94 Cal. Rptr. 2d 396, 996 P.2d 46, (2000); Forrest v. State, 721 A.2d 1271, 1277 (Del. 1999); Baker v. State, 332 Md. 542, 556, 632 A.2d 783 (1993); State v. Jackson, 348 N.C. 644, 654, 503 S.E.2d 101 (1998). We conclude that the state of mind exception to hearsay under K.S.A. 2000 Supp. 60-460(1) is a firmly rooted hearsay exception, and there was no need for the court to determine whether the statements bore particularized guarantees of trustworthiness. The trial court did not err in admitting the statements under K.S.A. 2000 Supp. 60-460(1).
Prosecutorial Misconduct
The defendant’s final argument is that the prosecutor committed misconduct during his closing argument. He contends the prosecutor improperly told the jury the defendant failed to come forward with testimony discrediting Carter and this conduct improperly shifted the burden of proof to the defendant.
Our standard of review with regard to prosecutorial misconduct is well known. An appellate court’s analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process: First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial. In order to find that the remarks were not so gross or flagrant, the court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial. State v. McCorkendale, 267 Kan. 263, 278-79, 979 P.2d 1239 (1999).
“It is the duty of a prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor and use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. [Citation omitted.]” State v. Ruff, 252 Kan. 625, 634, 847 P.2d 1258 (1993).
None of the complained of remarks by the prosecutor in this case were objected to by the defendant. Kansas does not ordinarily apply the plain error rule, and reversible error normally cannot be predicated upon a complaint of misconduct by the prosecutor during closing argument where no contemporaneous objection is lodged. However, if the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection. McCorkendale, 267 Kan. at 278.
The defendant complains of two instances of improper remarks by the prosecutor. The first occurred during the first half of the prosecutor’s closing, wherein the prosecutor stated:
“He talks about evidence, lack of evidence and conflicts of evidence. Ladies and gentlemen, the evidence is Carter Betts. The evidence is Carter Betts. There is nothing that conflicts Carter Betts. Carter Betts gives you the entire evidence and that’s the evidence.” (Emphasis added.)
While the defendant argues the prosecutor was implying to the jury that the defendant had failed to produce evidence to rebut Carter’s statement, a close reading reveals the prosecutor was actually stating that there was no conflicting evidence. Instead, the prosecutor was arguing the only evidence was from Carter, and was conclusive, if believed. This was not an attempt to shift the burden of proof and did not constitute misconduct.
The second complained-of instance is more problematic. In the second half of his closing argument, the prosecutor stated:
“Carter Betts, ladies and gentlemen, sat on this witness stand. You saw him up here. Did he look nervous, did he look scared? Did he look sad? That’s for you to determine. That’s the man you saw up there, was he telling you the truth? Is he out to get his nephew? And if he is out to get his nephew, why is he out to get his nephew? If [defense counsel\ had a real reason why Carter Betts would lie to you, he would not only have said it, he would have said, well, yeah, maybe he was saving his own skin, that sounds like a motive to me and then move on to everything else. You know what he would have been doing? Founding on the bar saying, ladies and gentlemen, he’s lying because this is why he’s turning his nephews in, this is why he’s saying he did it. He can’t do that because Carter Betts doesn’t have a reason.
“They’ve since this case has been filed, they’ve had one job, find out why Carter Betts is lying one job the entire time, months and months since December 29th, find out and give the jury a reason why Carter’s lying. They cannot do it. If they could do it because they have to do it, otherwise you know Carter’s telling the truth and you know that Les McKinney is a murderer. They can’t do it. If they could have, ladies and gentlemen, you would have heard nothing else from them." (Emphasis added.)
The remarks by the prosecutor suggested to the jury that the defense had the responsibility to rebut Carter’s statements and they failed to do so because Carter was telling the truth. The defendant contends these remarks were impermissible because they implied a burden of proof he did not have. However, it has been held that where the jury has been properly instructed the prosecution has the burden of proof, a prosecutor may argue inferences based on the balance or lack of evidence, provided that the remarks do not indirectly draw an adverse inference regarding the defendant’s failure to testify. U.S. v. Parker, 903 F.2d 91, 98 (2d Cir. 1990); U.S. v. Sblendorio, 830 F.2d 1382, 1391-93 (7th Cir. 1987); United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir. 1982). The Seventh Circuit Court of Appeals in Sblendorio stated that a prosecutor commenting that his evidence was uncontradicted or on the failure of the defendant to produce witnesses does not actually change the burden because the jury has been instructed that the burden remains with the prosecution. Instead, where such occurs, “the defendant[’s] real complaint is that a given argument may adversely affect the exercise (or value of) a constitutional right, such as the privilege against compulsory self-incrimination.” 830 F.2d at 1391. The court went on to state:
“The defendant’s decisions about evidence other than his own testimony do not implicate the privilege, and a comment on the defendant’s failure to call a witness does not tax the exercise of the privilege. It simply asks the juiy to assess the value of the existing evidence in the light of countermeasures that were (or were not) taken. The inferences come from the evidence before the court. ... As a result, the prosecutor may imply that the failure of the defense to present available evidence (other than the defendant’s testimony) in opposition to the government’s witnesses supports a conclusion that the government’s witnesses are reliable.” 830 F.2d at 1391-92.
Thus, the question is whether the prosecutor’s comment in this case could be construed as a comment on the defendant’s failure to testify. The Fifth Amendment to the United States Constitution, as well as § 10 of the Kansas Constitution Bill of Rights, prohibits a prosecutor from making direct, adverse comments on a defendant’s failure to testify on his or her own behalf. Griffin v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); 249 Kan. 15, 21, 815 P.2d 519 (1991). An indirect comment may also violate the privilege where the language used was manifestly intended or was of such a character that the jury would necessarily take it to be a comment on the failure of the accused to testify. State v. Ninci, 262 Kan. 21, 48, 936 P.2d 1364 (1997).
In Milo, we quoted State v. DiCaro, 852 F.2d 259, 263 (7th Cir. 1988), for the proposition that “ ‘[a] prosecutor’s assertion that evidence is uncontradicted is impermissible only if it is highly unlikely that anyone other than the defendant could rebut the evidence.’ ” 249 Kan. at 21-22. The same standard applies to a prosecutor’s comment on the failure of the defendant to present evidence or call witnesses. U.S. v. Butler, 71 F.3d 243, 254-55 (7th Cir. 1995).
In the case at hand, the prosecutor was not inferring that the defendant did not testify to rebut Carter’s testimony, but only that the defense had failed to produce evidence in general that would cast doubt on Carter’s credibility. It was not unlikely that anyone other than the defendant could rebut the evidence presented; therefore, the statements would not necessarily be taken as a comment on the failure of the defendant to testify. Under Milo, DiCaro, and Sblendorio, this comment was proper.
As the State points out, the prosecutor’s closing arguments were in response to defense counsel’s closing argument wherein defense counsel argued that Carter was lying to protect himself. We have held that there is no prejudicial error when questionable remarks made by a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel. State v. Follin, 263 Kan. 28, 45, 947 P.2d 8 (1997); State v. Sexton, 256 Kan. 344, 363, 886 P.2d 811 (1994); State v. Baker, 249 Kan. 431, 446, 819 P.2d. 1173 (1991). We conclude that no prejudicial prosecutorial misconduct occurred in this case.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant Melvin W. Holmes was convicted of premeditated first-degree murder and criminal possession of a firearm. The trial judge sentenced defendant to a hard 40 sentence. Defendant appeals his convictions and sentences claiming (1) the prosecutor’s comments during closing argument denied defendant his right to a fair trial; (2) the premeditation instruction was unconstitutionally vague; (3) the trial court failed to suppress defendant’s statements to police officers; (4) evidence was insufficient to sustain the imposition of the hard 40 sentence; and (5) aggravating circumstances must be proved to the jury beyond a reasonable doubt. Because we are setting aside the jury verdict of guilty of premeditated first-degree murder, we will not discuss the remaining issues.
On March 7, 1999, at 5:19 a.m., police received a 911 call from Holmes, who calmly stated that he had shot his girlfriend during an argument. When law enforcement officers arrived at Holmes’ house, they found Glenda Smith’s body in the hallway and a gun laying on her shoulder. Smith had been shot in the chest. There was a semicircular cut, consistent with the shape of a hammer, on the top of her head. It was later determined that the hammer blow did not fracture Smith’s skull or cause brain injury. The gunshot wound was a contact wound, indicating the gun was held next to Smith’s skin when fired. Smith’s fingers were stiff, and the blood in her mouth diy. Drug paraphernalia was found throughout the house. Holmes was arrested.
At the police station, Holmes was advised of his Miranda rights. After initialing the advice of rights form, Holmes stated that he and Smith had used heroin and cocaine and argued about drugs. While they were in bed, Holmes said, Smith began talking “shit.” Smith was “tweaking,” i.e., paranoid because of drug use. At such times, Smith would obtain knives and a gun from the armoire.
Fearing what Smith would do, Holmes stated that he grabbed a hammer that was laying next to the bed and hit Smith in the head. The blow did not faze Smith. Smith jumped up in the bed screaming. Holmes noted that Smith had the gun in her hand. Holmes grabbed for the gun. A struggle ensued on the bed, in the room, and finally into the hallway outside the bedroom. During the struggle, the gun clicked several times but did not fire. Holmes did not know who was pulling the trigger because they both had hold of the gun. It was later determined that the ammunition was too long for the gun and that the revolver’s cylinder would not always rotate correctly.
Holmes told the police that in the hallway he overpowered Smith, took control of the gun, and threw Smith to the floor and straddled her. He then placed the gun to Smith’s chest. When Smith put her hands on the gun, Holmes threatened that he “could” or “would” kill Smith. During the struggle over the gun, Smith was shot in the chest. Shocked by what had happened, Holmes dropped the gun on Smith’s chest, stepped over Smith’s body, went to the bathroom, and finished using his stash of drugs. Holmes stated to the officers that after Smith was shot, he should have called an ambulance to assist Smith, but since he was going to jail, “he figured, what the hell, he would go ahead and finish up the drugs.” After finishing the drugs, Holmes called 911. The 911 call was received at 5:19 a.m.
Holmes was charged with premeditated first-degree murder and criminal possession of a firearm. Prior to trial, Holmes moved to suppress his statements to law enforcement officials. Holmes asserted that he had not been informed of his Miranda rights, and if informed of the rights he did not knowingly and intelligently waive those rights. At the suppression hearing, Holmes argued he did not knowingly and intelligently waive his Miranda rights. The judge found Holmes’ statements were voluntarily and knowingly made.
Prior to trial, the State filed its notice of intent to request mandatory 40-year imprisonment. The notice identified two aggravating circumstances: (1) The crime was committed for the defendant’s self or another for the purpose of receiving money or other thing of monetary value, and (2) the crime was committed in an especially heinous, atrocious, or cruel manner.
At trial, Holmes’ defense was that the shooting was accidental. The time between the shooting and Holmes’ 911 call was disputed at trial. Holmes testified that he called law enforcement 6 minutes after the shooting. Neighbors testified that they heard shots fired at around 3:30 a.m. or 4 a.m., i:e., 60 to 90 minutes before Holmes’ 5:19 a.m. 911 call. The jury convicted Holmes of first-degree premeditated murder and criminal possession of a firearm. The court found aggravating factors and imposed the hard 40 sentence. Holmes appeals. This court’s jurisdiction is pursuant to K.S.A. 22-3601(b)(1).
Prosecutor’s Comments
Holmes had been arraigned on first-degree premeditated murder, K.S.A. 21-3401(a). After hearing the evidence, the trial court determined it was required to instruct the jury on first-degree (premeditated) murder and the lesser included offenses of second- degree (intentional) murder, K.S.A. 2000 Supp. 21-3402(a), and voluntary (intentional) manslaughter, K.S.A. 21-3403.
At the jury instructions conference prior to closing arguments, the following discussion occurred as to the instruction on first-degree premeditated murder and the definition of premeditation:
“THE COURT:....
“Now, an instruction based on case law has been offered by the State. Is this the language that you want — how you want it to read? [The prosecutor’s proposed instruction is not in the record.]
“[PROSECUTOR]: Yes, that’s how I want it to read. And it might be appropriate to put it with die definitions.
“THE COURT: There is no particular time period for premeditation.
“[PROSECUTOR]: Right. And I think that it’s appropriate to go ahead and state that. And I have reviewed State v. Monda, [262 Kan. 58, 936 P.2d 727 (1997)] .... And in that particular case the court actually gave a further definition of premeditation. It had said, premeditation, means to have thought over die matter beforehand. There is no particular time period for premeditation and it may arise in an instant. And the jury — or the judge — the Supreme Court said diat it was a proper statement of the law, and that the use of it can arise in an instant. They didn’t like that particular language so that’s why I’m asking diat that be eliminated. But it was not reversible error, even with that particular language diat it could arise in an instant. But I do think that it is necessary in these circumstances to have a further definition of premeditation, that there is no time period required for premeditation. And so I’d ask the Court to allow that to go with the definition instruction.
“[DEFENSE ATTORNEY]: Um, your Honor, I’m not going to object to the language as [the prosecutor] has offered it for this instruction. I would ask the Court to place it under die premeditation definition that’s currently in the instructions.
“THE COURT: Under what?
“[DEFENSE ATTORNEY]: Under the premeditation definition that’s already in the instructions.
“THE COURT: You mean the elements instruction?
“[DEFENSE ATTORNEY]: No, Premeditation is defined in 56.04. At the top of die page it says, means to have thought over the matter beforehand. And if we could put in the language at that point that there’s no particular time period, I would have no objection.
“THE COURT: So taking the State’s [proposed] instruction on premeditation ....
“[PROSECUTOR]: Correct.
“[DEFENSE ATTORNEY]: Yes, your Honor.
“THE COURT: Okay. Boy, you know, and I’ve read that case before. I’m not satisfied with the language from that. I think they should have said something more along the line, there is no — to me, it can be interpreted two different ways, that the premeditation could have occurred at some time a week before, you know, the time period, rather than there’s no particular length of time required for premeditation to take place. Do you understand?
“[PROSECUTOR]: Yeah. The language adding no particular length of time.
“THE COURT: Rather than no particular time period. There is no particular length of time —
“[PROSECUTOR]: That would be better.
“THE COURT: There is no particular length of time required for premeditation to occur.
“[PROSECUTOR]: I like that. I would ask to change it to that.
“[DEFENSE ATTORNEY]: Your Honor, if it’s that technical, perhaps we should just not instruct on it. It would confuse the jury. I guess I’m going to go ahead and object for the record.
“THE COURT: Okay. What I’m going to do on the instructions is instruct them as follows: Premeditation means to have thought over the matter beforehand. There is no particular length of time required for premeditation to occur. My concerns are with the language that has been approved or has been found not to be appealable error. I think it still is — creates at least some confusion that could occur.
“[DEFENSE ATTORNEY]: Your Honor, —
“THE COURT: And I think that my language addresses the issue more specifically.
“[DEFENSE ATTORNEY]: I’m afraid that no particular length of time could imply to the jury that no time is necessary to show deliberation.
“[PROSECUTOR]: Well, it can happen in an instant, you know, so that would not be misleading the jury as far as the law in the State of Kansas.
“[DEFENSE ATTORNEY]: If no time is given to make a decision in that, then it’s a snap judgment; it’s not — it’s not premeditation.
“THE COURT: No particular length of time for premeditation to occur. There is no identified length of time for premeditation to occur. If we were to use identified, as that — that may take away from a particular focus on instantaneous action. Simply, it tells them it’s for them to determine, that there is no identified length of time required for premeditation to occur. No, I think I want to take away — depart from the already approved length as little as possible. What I’m going to do is include the instruction as follows: There is no particular length of time for premeditation to occur. The language, There is no particular time period for premeditation, I think my language is clear. If diere’s — I suppose the Supreme Court will tell me otherwise if it’s appealed. But I think it’s clear this way. And I think that covers all the instructions then.”
After the presentation of evidence was completed, the judge instructed the jury regarding the law. Instruction No. 1 provided: “It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all the instructions. You must decide the case by applying these instructions to the facts as you find them.”
Instruction No. 4 stated: “Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded.” (Emphasis added.)
Instruction No. 13 set out the elements of first-degree murder:
“The defendant is charged in Count 1 with the 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 intentionally killed Glenda L. Smith;
2. That such killing was done with premeditation; and
3. That this act occurred on or about the 7th day of March, 1999, in Sedgwick County, Kansas.”
Instruction No. 15 provided as follows:
“If you do not agree that the defendant is guilty of murder in the first degree, you should then consider tire lesser included offense of murder in the second degree, intentional.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Glenda L. Smith; and
2. That this act occurred on or about the 7th day of March, 1999, in Sedgwick County, Kansas.”
Instruction No. 17 provided:
“In considering whether the defendant is guilty of [intentional] murder in the second degree, you should also consider the lesser offense of voluntary [intentional] manslaughter. If diere is a reasonable doubt as to which of tírese two offenses the defendant is guilty, the defendant may be guilty of voluntary manslaughter only.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Glenda L. Smith;
2. That it was done upon a sudden quarrel, in the heat of passion, or upon an unreasonable but honest belief diat circumstances existed that justified deadly force in the defense of a person; and
3. That this act occurred on or about the 7th day of March, 1999, in Sedgwick County, Kansas.” (Emphasis added.)
Instruction No. 19 defined certain terms used in the instructions and provided, in part, that “[p]remeditation means to have thought over the matter beforehand. There is no particular length of time required for premeditation to occur,” “[w]illfully means conduct that is purposeful and intentional and not accidental,” and “[i]ntentionally means conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing,’ ‘willful,’ ‘purposeful’ and ‘on purpose.’ ”
Holmes’ claim that he did not receive a fair trial concerns the jury instructions, the prosecutor’s statement of the law to the trial judge, and the prosecutor’s contrary statement of law to the jury. After the jury was instructed by the judge as to the law, the prosecutor stated in closing argument:
“So, ladies and gentlemen, if you look at all those facts, you see that, in fact, he did have the premeditation to kill Glenda Smith. But remember this, remember that definition that says that premeditation, there isn’t a particular length of time for premeditation. Ladies and gentlemen, premeditation can occur in an instant. That’s the law in the State of Kansas. And, ladies and gentlemen, that’s what he did.” (Emphasis added.)
In rebuttal, the prosecutor stated:
“And premeditation can take a second. It was an intentional killing. You put a gun to somebody you know and you pull the trigger, you know it could kill diem. And he did that, but it was premeditated. It can happen in a second.
“When I bent down to pick up my pen, that was premeditated. I thought about picking up my pen. We know he thought about killing Glenda because he told her, You know I’ll kill you. That’s what he told her. He was thinking about it as he pulled that trigger and left her laying [sic] dead on the floor, and dien let her stay there for a couple of hours.”
There was no objection to the prosecutor’s remarks regarding the time in which premeditation occurs. On appeal, Holmes contends that the prosecutor’s remarks that premeditation can occur in an instant or in a second is plain error and requires a reversal of Holmes’ first-degree premeditated murder conviction. In our discussion we will first note the difference between the federal “plain error” rule and the Kansas harmless error statute.
We note that the Kansas Legislature enacted the harmless error rale. K.S.A. 60-261 states:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, 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.”
Rule 52 of the Federal Rules of Criminal Procedure is similar to K.S.A. 60-261 and provides:
“(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
“(b) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
The Kansas harmless error statute encompasses the federal harmless error and plain error rules. Normally, under the Kansas harmless error rule, reversible error cannot be predicated upon misconduct by the prosecutor during closing argument if a contemporaneous objection is not made. However, under K.S.A. 60-261, if the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial or deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection, because such act is inconsistent with substantial justice. State v. Lumley, 266 Kan. 939, 964-65, 976 P.2d 486 (1999).
K.S.A. 60-261 places upon the trial court a duty to protect a defendant’s right to a fair trial. The trial court is required to prevent prosecutorial misconduct from occurring regardless of whether a timely objection has been lodged by the defendant. State v. Gray, 25 Kan. App. 2d 83, 88, 958 P.2d 37 (1998). To buttress his claim that he is entitled to a new trial, Holmes argues that the prosecutor purposefully misstated to the jury the law of Kansas on premeditation and that this misstatement deprived him of his right to a fair trial. For support, Holmes relies on Moncla, 262 Kan. 58.
In Moncla, 262 Kan. at 72, we stated that the district court’s instruction to the jury that “premeditation means to have thought over the matter beforehand, and that there is no particular time period for premeditation” was a correct statement of law. We re jected the trial judge’s inclusion of the phrase that premeditation “may arise in an instant” in the jury instruction defining premeditation. The unanimous Monda court concluded that the addition of the phrase “it may arise in an instant” diminished the definition of premeditation. 262 Kan. at 72.
Because the issue on appeal is framed as prosecutorial misconduct and there was no objection to the alleged misconduct at trial, we must first determine if the prosecutor’s misstatement of the Kansas law violated Holmes’ right to a fair trial and his Fourteenth Amendment right to due process. To analyze whether Holmes’ right to a fair trial was jeopardized, it is necessary to consider the prosecutor’s remarks to the judge regarding the judge’s instructions of the law to the jury and the prosecutor’s contrary statement of the law to the jury.
Due to the fact that each of the three jury instructions as to the degree of homicide required proof of an intentional act, the issue for the jury to first determine was whether Holmes had premeditated the killing of Smith. We note that in a prosecution for premeditated murder, the law does not presume the existence of premeditation or deliberation from any state of circumstances. However, it is not necessary that a premeditated intent to kill be established directly. Premeditation and deliberation may be inferred from the established circumstances, provided the inference is reasonable. If an inference is reasonable, the juiy has the right to make the inference. State v. Buie, 223 Kan. 594, 597, 575 P.2d 555 (1978).
Holmes contends the prosecutor’s statement to the jury that premeditation can occur in an instant was a misstatement of law which blurred the distinction between first-degree premeditated murder and the lesser included offenses and denied him due process of law.
In State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000), the court observed that the concept of “premeditation,” as defined in PIK Crim. 3d 56.04(b), is more than the instantaneous, intentional act of taking another s life. It concluded that to have thought the matter over beforehand means to form a design or intent to kill before the act. 269 Kan. at 573. Here, the prosecutor, after inform ing the judge as to the law, deliberately misstated the law to the jury, and the trial court’s failure to act to correct the misstatement deprived Holmes of his right to a fair trial.
Reversed and remanded for a new trial.
Allegrucci, J., concurs in the result. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The State appeals pursuant to K.S.A. 22-3602(b)(1) from the district court’s order suppressing evidence seized in a warrantless search and dismissing the case without prejudice.
Defendant Frank Rice, Jr., was one of six visitors in Carey Ford’s apartment when police officers McFadden and Farris went there at approximately 2 a.m. on October 25, 1996, after receiving a dispatch about an anonymous telephone caller complaining of noise and possible use of marijuana or other narcotics. The officers heard loud music, but they detected no odor of marijuana. The uniformed officers told Ford the nature of the call and obtained her permission to enter the apartment to talk to her. Ford then consented to a search of her apartment. Meanwhile, the visitors sat in the living room, as the officers had directed them to do. The search took approximately 10 minutes, and the officers found on a window sill a small plastic bag containing green vegetation that the officers thought was marijuana.
The officers asked if anyone would admit to owning the marijuana. No one did. Approximately 10 more minutes passed while the officers took identification and ran a warrant check on each person. Before the guests were allowed to leave, each one had to speak to Officer Farris individually in the hallway outside Ford’s apartment. He asked Rice “if he knew anything about the marijuana that was found inside the apartment,” or “if he had any narcotics on his person.” Rice answered to both questions that he did not. Then the officer asked to search Rice. In the meantime, Officer McFadden stayed inside the apartment with the others.
Officer Farris asked each person for consent to search his or her pockets. Rice consented. In Rice’s right front pants pocket, the officer found a plastic bag that contained green vegetation. The officer seized the bag and then advised Rice of his Miranda rights.
A month later, a two-count complaint was filed against Rice for misdemeanor possession of marijuana and misdemeanor possession of paraphernalia. Rice filed a motion to suppress evidence seized from him during the warrantless search outside Ford’s apartment. The trial court concluded that the detention, search, and interrogation of Rice were unlawful and granted defendant’s motion. When told that there was no other evidence against Rice, the trial court dismissed the case without prejudice. A journal entry reiterating the trial court’s rulings from the bench was filed on January 16, 1997. The State filed a timely notice of appeal.
After hearing the evidence presented by the State at the hearing on defendant’s motion to suppress, the trial court stated:
“Well, this is a Vandiver situation and the evidence is suppressed. There was an unlawful detention of the defendant. It was an unlawful search of the defendant. There was no indication whatsoever that he was free to go or that he ... can refuse to consent to that search. . . . The Vandiver case is clear. It applies to exactly this type of a situation. The only distinction is that in Vandiver the police had a warrant to go search the place. Here they just got consent from the owner who was — there’s no testimony that she was given any advice that she didn’t have to consent to the search or anything else. . . . [I]f there was a loud party going on here, the . . . obvious solution to that was go in and send everybody home and break up the party, not go in and use it for some pretense to search for drugs . . . .”
When asked to clarify whether he was ruling that Ford’s consent to search her apartment was not voluntary, the trial judge indicated that the issue of her consent was immaterial: “[W]hat I’m worried about is the unlawful detention of a guest lawfully on the premises.”
In State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995), the defendant was one of six visitors in the apartment of David Moneymaker, a convicted drug offender, when a police officer entered the apartment to execute a search warrant. The affidavit for the warrant stated that “two marijuana purchases had occurred at the residence within the previous four days.” 257 Kan. at 54-55. It did not, however, “provide a factual basis for the issuing magistrate to determine that, other than the occupant, persons within the premises would be involved in or conducting illegal drug sales.” 257 Kan. at 63. The visitors were in the living room “playing a Nintendo-type game. The apartment reeked of burnt marijuana, and a baggy containing green vegetation” was in plain view on the floor in the midst of the visitors. 257 Kan. at 55. The officer “immediately arrested an individual he recognized as being involved in a drug buy several days earlier.” 257 Kan. at 55. Then the officer conducted a pat-down search of Vandiver and removed a film canister from Vandiver’s pants pocket. The officer testified that “he removed the canister from Vandiver’s pocket To inspect it, not knowing what it was,’ and because he was suspicious it was either a weapon or contraband. Vandiver was arrested for possession of marijuana.” 257 Kan. at 55. With regard to the pat-down search, this court stated:
“In circumstances where a police officer executing a search warrant of the premises observes unusual conduct by individuals not named in the search warrant which leads the officer reasonably to conclude in light of his or her experience that criminal activity may be afoot and that the persons with whom the officer is dealing may be armed and presently dangerous, the officer is entitled for the officer’s protection and the protection of others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault the officer. See K.S.A. 1994 Supp. 22- 2402; Terry v. Ohio, 392 U.S. [1,] 30-31 [, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)].
“In this case, however, there is no substantial competent evidence that exigent circumstances existed to authorize the search of Vandiver. There is nothing to indicate that the officer was concerned with his safety. After entering the apartment and executing the search warrant, the officer did not recognize Vandiver, had no reason to believe that Vandiver had previously committed an offense, and did not have sufficient facts to arrest Vandiver for possession of the marijuana in plain view. Under these facts, the Court of Appeals correctly determined that under K.S.A. 22-2509(b), the officer executing the search warrant had no reason to detain Vandiver to prevent the disposal or concealment of any objects particularly described in the warrant.” 257 Kan. at 63-64.
The State contends that Vandiver should be distinguished on its facts. There are essential factual differences — there was a warrant to search Moneymaker’s apartment, but consent to search Ford’s; Vandiver was subject to a pat-down, but Rice was searched for drugs; Vandiver did not consent, but Rice did. These factual differences necessitate some variants in the analysis, but the initial inquiry for both must involve the status of a guest in a private residence.
Although complaining of the trial court’s reliance on Vandiver, the State relies on it, too, and asserts that the case stands for the proposition that officers conducting “an investigation into the ownership of controlled substances when such substances are found in the midst of several persons” “must necessarily detain those persons who are possible suspects in the commission of the crime (of possession) for a reasonable time in order to conduct the investigation.” In other words, the State’s position is that the visitors were detained so that Officers McFadden and Farris could determine who owned the bag of vegetation on the window sill. The State gives several hypothetical analogies, and all involve evidence of a crime being in plain view of officers entering the premises. The State glosses over the question whether principles applicable to treatment of visitors during execution of a search warrant are equally applicable in a consensual search. K.S.A. 22-2509(b), cited in Vandiver, provides: “In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time: (a) To protect himself from attack, or (b) To prevent the disposal or concealment of any things particularly described in the warrant.” One obvious difference is that when officers enter a residence with a search warrant, they have probable cause that there is criminal activity in the residence. Thus, the rationale that the State argues for the officers’ detaining the visitors is based on their seeing the bag of vegetation before telling the visitors to sit in the living room. The officers’ testimony, however, lends very little support to that sequence. The following testimony was given by McFadden on direct examination:
“Q. What did you do once you went inside the residence?
“A. We explained the nature of the call and [Ford] gave us consent to search the apartment for marijuana or any other illegal drugs.
“Q. Did you find anything inside the apartment?
“A. Yes. Very shortly after our entry into the apartment we found a small Baggie of substance we believed to be marijuana on the window sill of the front window of the apartment.
“Q. . . . Now, what were the people, the other people who were at the apartment, doing while you conducted the search?
“A. We asked them to be seated in the main living area of the apartment.
“Q. Why did you ask them to be seated there?
“A. We — we needed to search the apartment and we wanted them to sit down while we looked for any more illegal substances and then we wanted to talk to them about what we had found on the window sill.”
McFadden was not asked, nor did he volunteer, the exact order of events. It might reasonably be inferred, though, from the last answer above, that the officers did not ask the visitors to be seated in the living room until after the officers found the bag of vegetation. The balance of McFadden’s testimony and all of Farris’ testimony, however, give the opposite impression. In this regard, McFadden stated that the officers’ intention to search the apartment was formed on the basis of the dispatch before they reached the apartment. He also testified:
“Q. . . . [W]hen you arrived you saw Mr. Rice and what did you do with Mr. Rice then?
“A. We asked him, as with the other occupants of the apartment, to have a seat in the living room.”
Officer Farris gave the following testimony:
“Q. What did you do once you were inside the apartment?
“A. We located all the subjects and had them sit in the front room.
“Q. What was the reason for having them sit in the front room?
“A. To just get them all together so we could search the apartment for officers’ safety.
“Q. Okay. Did anyone ask to leave at that point?
“A. No, they did not.
“Q. What did you — did you conduct the search then?
“A. Yes. The search was done while the subjects were located in the front room.
“Q. How long did that search take?
“A. The search itself maybe ten minutes.
“Q. Did you find anything during the search?
“A. Yes, we did.
“Q. What did you find?
“A. A small Baggie of green vegetation on the window sill.”
On cross-examination, Farris reiterated this sequence:
“Now, you advised Ms. Ford of the reason for you being there and asked her to come into the house; is that correct?
“A. That’s correct.
“Q. And I believe you testified that you wanted to search the apartment; is that correct?
“A. That’s correct.
“Q. And you asked her for consent to search; is that your testimony?
“A. That’s correct.
“Q. Now, I believe you testified, sir, that when you obtained this consent you located all of the subjects and had them sit in the front room; is that your testimony?
“A. That’s correct.
“Q. And would this have been done immediately before you started the search of the residence?
“A. That’s correct.
“Q. Now, this, you said, I believe, was for officers’ safety.
“A. Yes, sir.”
Farris also stated that his intent to search the apartment was formed upon hearing the dispatch.
As noted, the greater weight of the testimony holds with the bag of vegetation being found during the search rather than its being spotted by the officers in plain view when they entered the apartment. The weight of the evidence supports, and it logically follows, that the officers detained the visitors before becoming aware of any evidence that the crime of marijuana possession was being committed. There is no claim by the State that the anonymous tip about possible drug use at the party provided probable, or even any, reason to believe that a crime was being committed. Additional support for finding that the detention preceded the discovery of the marijuana may be seen in the absence of any plain testimony placing the bag of vegetation in plain view of the officers as they entered the apartment. Under K.S.A. 22-3216(2), “the burden of proving that die search and seizure were lawful shall be on the prosecution.”
The State also argues that the officers were operating under the authorization of K.S.A. 22-2402(1) in conducting an investigation to discover who owned the marijuana. The statute is the “Terry stop” statute, which permits an officer to “stop any person in a public place whom such officer reasonably suspects is committing [or] has committed” a crime.
In response to the State’s argument, Rice contends that K.S.A. 22-2402(1) does not apply because he was in a private residence rather than in a public place. As the court recounted in Vandiver, an issue in State v. Lambert, 238 Kan. 444, 710 P.2d 693 (1985), was whether Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), applied to searches of private property. Ybarra involved the search of a tavern pursuant to a warrant. Patrons of the tavern were subjected to “a cursory search” for weapons. After patting what felt like a cigarette pack with things in it, an officer retrieved from Ybarra’s pants pocket a cigarette pack containing six packets of heroin. The Vandiver court described the United States Supreme Court’s opinion in the following words:
“It noted that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. It stated that a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. It concluded that this requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the legitimate expectations of privacy of persons, not places. 444 U.S. at 91. The Court ruled that ‘[t]he “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.’ 444 U.S. at 94. It concluded that under the doctrine of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the initial frisk of Ybarra was not supported by a reasonable belief that Ybarra was armed and presently dangerous, which is required to form the predicate to a pat-down of a person for weapons. 444 U.S. at 92-93.” 257 Kan. at 61.
In Lambert, this court held that “the principles stated in Terry and Ybarra apply equally to searches conducted on private property or on property open to the public.” 238 Kan. at 448. Thus, in proper circumstances, the police may search a visitor in the course of executing a warrant for a premises search. Proper circumstances include where there is a reasonable belief that the person is armed and dangerous, where contraband is in plain view on the person, and where the visitor consents to being searched. 257 Kan. at 62.
It is abundantly clear from the following testimony of the officers that they were not concerned that any of the visitors were armed, nor did they observe anything about Rice’s appearance that would indicate that he had violated, was violating, or was going to violate the law:
“Q. And when you first arrived in the home, did you observe Mr. Rice?
“A. Yes, I did.
“Q. Where did you observe him?
“A. I believe he was towards the back of the living room near the kitchen in the boundary way between those two rooms.
“Q. All right. And when you first made observation of Mr. Rice, did it appear that he was in violation of the law?
“A. No, sir.
“Q. Did it appear that he had just done something immediately before your arrival that — in violation of the law?
“A. No.
“Q. Did it appear that he was going to violate the law?
"A. No.
“Q. All right. And at any time did you have reasonable articulable suspicion that Mr. Rice had violated the law?
“A. Not until a search of his person was conducted.
“Q. And was there an odor of marijuana about the building?
“A. No, sir.
“Q. Okay. Now, so when you arrived you saw Mr. Rice and what did you do with Mr. Rice then?
“A. We asked him, as with the other occupants of the apartment, to have a seat in the living room.
“Q. You told him to have a seat?
“A. We asked them to have a seat.
“Q. You asked them. In what manner? What did you say? How did you say it?
“A. I probably said something to the effect would you people sit down in the living room.
“Q. Okay. And at that time did — let’s strike that. I’ve already been over that. And Mr. Rice complied with your request, did he not?
“A. Yes, he did.
“Q. At any time did Mr. Rice do anything that would cause you to fear for your safety?
“A. No, sir.
“Q. So you did not conduct any type of pat-down search of Mr. Rice to insure that he didn’t have any gun or weapon for your own safety; is that right?
“A. No, sir. We felt that having them all take a seat in the living room where we could observe them was sufficient.
“Q. Okay. So at that time then you did not have any concern for your own safety and you did not conduct any further type of Terry search of Mr. Rice, correct?
“A. We’re always concerned for our safety.
“Q. Well, I understand, but at that particular junction?
“A. No, sir,
“Q. Okay. And he sat there pursuant to your request and he didn’t get up and he didn’t leave, correct?
“A. No, sir, he did not.
“Q. And did you have any outside information that Mr. Rice might have been — any tip from any informant that Mr. Rice was in any violation of the law?
“A. No, sir we didn’t.
“Q. Now, at any time prior to this time, did you seek and obtain a search warrant for the search of that residence?
“A. No, I did not.
“Q. So to clarify you did not have a search warrant, correct?
“A. Correct.
“Q. Now, I believe you testified, sir, that when you obtained this consent you located all of the subjects and had them sit in the front room; is that your testimony?
“A. That’s correct.
“Q. And would this have been done immediately before you started the search of the residence?
“A. That’s correct.
“Q. At any time when these individuals were asked to sit in the front room, did you pat down any of [them] for search of weapons for your own safety?
“A. No, I did not.
“Q. Now, in any event, you asked them to sit down. Did he in fact comply?
“A. Yes, he did.
“Q. Now, at any time did Mr. Rice indicate to you that he wanted to go?
“A. No, he did not.
“Q. At any time did you or Officer McFadden indicate to Mr. Rice or any of the other individuals that they were free to go?
“A. We were detaining them until we got the warrants checked.
“Q. Until what?
“A. We were detaining them until we got the warrants checked.
“Q. To answer my question then you and Officer McFadden would not have explained to them that they were free to go?
“A. They were not free to go at that time, yes.
“[Now], when you first entered that apartment, did you observe Mr. Rice committing any crime?
“A. No, I did not.
“Q. Did you have any reasonable suspicion that he had committed a crime or was about to commit a crime?
“A. I didn’t know. That’s why we had him detained in the living room.”
Rice advocates affirming the trial court’s reasoning as well as its result. He argues that he was improperly detained and that his consent to the search of his person was “not an act of free will” because it was “so closely intertwined with the primary illegality.”
The State argues that defendant’s consent to Officer Farris’ search of his person was not rendered involuntary by his being detained. Furthermore, the State asserts, “if there was an unreasonable, unlawful detention of Appellee by Officers McFadden and Farris, the subsequent consent given by Appellee to the search of his person was voluntary and removed any taint present because of the detention.” For this proposition, the State cites State v. Crowder, 20 Kan. App. 2d 117, Syl. ¶ 5, 887 P.2d 698 (1994).
In Crowder, the Court of Appeals stated that “[t]he test for whether a seizure has occurred turns on whether a reasonable person under the totality of the circumstances would believe, based on the officer’s conduct, that he was free to go. Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 400, 111 S. Ct. 2382 (1991).” 20 Kan. App. 2d at 121. In the present case, Officer McFadden tes tified that Rice would not have been permitted to leave the living room of Ford’s apartment if he had requested to do so. Thus, there is no question that Rice’s being directed to sit in the living room constituted a seizure. Under Crowders holding, however, even if he was unreasonably seized, his consent to the search could operate to break the chain of events between the illegal detention and the search if his consent was voluntarily given under the totality of the circumstances. 20 Kan. App. 2d at 122. In other words, a search authorized by voluntary consent could be reasonable under the Fourth Amendment even though it followed an unreasonable seizure.
Voluntariness of consent to search is a question of fact. State v. Johnson, 253 Kan. 356, 364, 856 P.2d 134 (1993). “The trial court’s findings with regard to the existence and voluntariness of a consent to search will not be overturned on appeal unless clearly erroneous.” 253 Kan. 356, Syl. ¶ 1. Factors to be considered in determining whether the consent to search is an act of free will that was independent of the detention, the primary illegality, include “the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the ‘purpose and flagrancy’ of the officers’ misconduct. U.S. v. Mendoza-Salgado, 964 F.2d 993, 1011 (10th Cir. 1992).” Crowder, 20 Kan. App. 2d at 122.
In the present case, Officer McFadden’s estimate of the time the visitors were detained was “roughly 15 to 20 minutes.” During that time the officers spent about 10 minutes searching the apartment and then asked the visitors for identification in order to check for outstanding warrants. Circumstances intervening between the initial detention of the visitors and Rice’s consent to search seem to intensify the coercive atmosphere rather than dissipate it. The officers searched the apartment and found apparent contraband, they took identification from the visitors in order to run checks on them, and, finally, the officers separated so that each visitor could be isolated from the group when questioned and asked to consent to a search of his or her person. A federal appeals court uses the phrase “exploitation of the primary illegality” to describe a circumstance when police use fruits of the primary illegality to coerce a defendant into granting consent to Search. United States v. Carson, 793 F.2d 1141, 1148 (10th Cir.), cert. denied 479 U.S. 914 (1986). A police request for consent to search does not itself constitute exploitation of the primary illegality, but the consent may be combined with other, more coercive, police conduct so that the resulting consent is not voluntary. In die present case, it appears that the contraband discovered while the visitors were detained probably became an important article in the intensifying pressure applied by the officers to the visitors. See 793 F.2d 1141. The officers’ conduct, although perhaps misguided rather than brutal or racially motivated or otherwise morally reprehensible, exceeds the bounds of constitutionality in a purposeful and obvious way. The prosecutor’s seemingly sincere argument that the police were simply doing their jobs by conducting an investigation into suspected criminal activity begs the question. The duty to investigate an anonymous telephone call does not justify the unlawful detention of an innocent nonresident visitor in a private residence. In U. S. v. Shareef, 100 F.3d 1491 (10th Cir. 1996), the trial court had suppressed evidence obtained as a result of the defendant’s detention following a traffic stop. The court found the stop analogous to an investigative detention and stated:
“We therefore analyze such stops under the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In evaluating the reasonableness of an investigative detention, we make a dual inquiry, considering first ‘whether the officer’s action was justified at its inception,’ and second ‘whether it was reasonably related in scope to the circumstances which justified the interference in the first place.’ Terry, 392 U.S. at 20, 88 S. Ct. at 1879. ‘The government has the burden of demonstrating that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.’ United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993). If the detention is not so limited, the stop may only be justified by probable cause or consent. Id.” 100 F.3d at 1500-01.
Here, there was no criminal activity to investigate prior to finding the marijuana on the window sill. The officers admittedly did not have a reasonable suspicion of any criminal activity on the part of Rice when they first entered the apartment or upon discovery of the marijuana on the window sill. The detention of Rice was unlawful from the moment he was ordered to sit down in the front room up to and including the search of his person. There were no intervening circumstances which separated Rice’s “consent” from the unlawful detention. The officers had no reasonable basis to detain Rice. Further, the prosecution’s alluding to the trial court’s “rampage” and “personal dislike toward the investigation and prosecution of drug crimes” and suggesting that the trial court’s ruling was based upon “personal bias” rather than on the evidence reflects poorly on the State and tends to discredit its argument.
The district court’s finding that Rice’s detention was unlawful is supported by substantial competent evidence. As to Rice’s consent to search, the district court’s finding that it was not voluntary is not clearly erroneous.
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The opinion of the court was delivered by
Allegrucci, J.:
Albert and Forestean Adams allege that their daughter suffered injury and died due to negligent treatment by Dr. Linus Ohaebosim and St. Francis Regional Medical Center, a/ k/a Via Christi Hospital (St. Francis). They took this interlocutory appeal from the district court’s decision that documents gathered and produced by the State Board of Nursing (Board) in connection with its investigation of Adams’ death were protected by statutory privileges. The district court certified its rulings for interlocutory appeal pursuant to K.S.A. 60-2102(b). Appellants’ request for leave to file the appeal was granted in December 1996. This court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The following two issues are raised in this interlocutory appeal:
1. Are documents gathered and produced by the Board in connection with its investigation of the death of Nichelle Adams protected by statutory privileges?
2. Are the statutes that create health care privileges unconstitutional as applied in this case?
Nichelle Adams, the daughter of appellants Albert and Forestean Adams, died as a result of a ruptured ectopic pregnancy in July 1992. The Adamses allege that the emergency room nurse, Ann Locke, who initially assessed their daughter’s condition, did not recognize its seriousness and did not alert a physician to Adams’ need for immediate attention.
In the district court, St. Francis filed two motions for protective orders, the first in May 1995 and the second in July 1995. Both were granted. Appellants filed a motion to determine the constitutionality of the privilege statutes. It was denied.
St. Francis’ first motion sought a protective order limiting use of documents obtained by plaintiffs’ counsel from the Board relative to the Board’s investigation of Ann Locke. The Board is not a party to this lawsuit. The following statement was made by St. Francis in explaining why it filed the first motion for a protective order:
“The Kansas State Board of Nursing investigated Ms. Locke’s conduct concerning the events of July 23,1992. The Board obtained various documents from St. Francis, including Disciplinary Action Forms on Ms. Locke. The Board also interviewed St. Francis personnel concerning Ms. Locke.
“During the litigation of this matter, plaintiffs’ counsel subpoenaed the Board’s investigation file on Ms. Locke. The Board produced to plaintiffs’ counsel what appears to be the entire investigation file, including the Disciplinary Action Forms from St. Francis, typed summaries of interviews of St. Francis employees and the Board’s investigative Summary. Plaintiffs’ counsel has revealed that, when the Board produced the file, it did not in any way protect the confidentiality of the subject or sources of the information. Plaintiffs’ counsel is now using the records as a cross-examination tool in depositions of St. Francis employees, directing specific inquiry to what employees may have stated to the Board concerning prior conduct of Ms. Locke. The St. Francis Disciplinary Action Forms are being used for this purpose, as well.”
St. Francis contended that the Board is required by statute, K.S.A. 1997 Supp. 65-1135(a), to maintain confidential records, that the Board breached the confidentiality requirement, and that the disciplinary action forms were prepared in conjunction with peer review and are protected by K.S.A. 1997 Supp. 65-4915(3)(D) and (I). St. Francis asserted: “The Board, by producing these forms to plaintiffs’ counsel, should not be allowed to unilaterally waive St. Francis’ privilege with regard to the forms being protected by the peer review statute.” The pertinent part of the prayer in St. Francis’ first motion states: “St. Francis prays the Court enter a protective order preventing counsel’s use of Kansas State Board of Nursing documentation.”
The district court heard argument on St. Francis’ first motion on June 14, 1995. It granted the motion. During argument, plaintiffs’ counsel repeatedly stated that it would be unconstitutional for the court to grant protection to the Board’s documents. The district court refused to rule on a question of constitutionality because it had riot been briefed.
In July 1995, St. Francis filed another motion for protective order, alleging that plaintiffs’ counsel was attempting to circumvent the protective order granted by the district court the previous month by deposing people with knowledge of the contents of the protected documents. St. Francis asked the court to enter another protective order and to quash depositions and notices sent by plaintiffs’ counsel.
In August 1995, plaintiffs filed a motion to determine the constitutionality of the health care privilege statutes invoked by St. Francis. They prayed that the district court would “declare the various privilege statutes, such as risk-management and peer-review cited in oral arguments, unconstitutional[,] deny defendant’s motion to obtain a protective order[,] and rule that plaintiff’s evidence of previous acts of negligence and similar misconduct be admitted at trial.” St. Francis contended that plaintiffs’ knowledge of “previous acts of negligence and similar misconduct” of Ann Locke had been gleaned from the now-protected Board documents.
The record on appeal does not seem to contain any indication that the plaintiffs’ motion was ruled on before October 1996, when a ruling on .it was included in the order certifying issues for interlocutory appeal. The record on appeal contains only an oblique reference to a ruling on St. Francis’ second motion. The reference was made during a hearing on still another pretrial motion.
In September 1995, plaintiffs requested leave to amend their petition to add a claim for punitive damages. The record contains a transcript of a hearing on the motion to amend. Plaintiffs’ counsel stated to the district court that the claim for punitive damages was built on information in the Board documents. In this regard, plaintiffs’ counsel stated:
“So I’m stuck in a position of trying to present to the Court a punitive damage claim by way of this motion so I can amend. But separately having to deal with the issue of whether or not I’m going to get it in at trial. And under Judge Corrigan’s current ruling, I’m not going to.
“But the question is I intend to take that up and have it reviewed by either the Supreme Court or the Court of Appeals, and I feel like I have an obligation to present the issue to this Court whether or not this evidence would get me past the amendment, to allow me to proceed.”
He explained to the district court that he and St. Francis’ counsel disagreed about the scope and substance of the ruling on St. Francis’ motion for protective order:
“I don’t have any significant disagreement with [St. Francis’ counsel] when he says that Judge Corrigan had entered an order. It’s not been journalized at this point. So I’m not sure exactly what the copy would be, because we’re still haggling over the Journal Entry, and we’re going to be working on that.”
St. Francis’ counsel told the court that the unjoumalized ruling was on the second motion for protective order. St. Francis’ counsel represented that “the Court ruled [plaintiffs’ counsel] could not depose the persons, among others, . . . connected with the Kansas State Board of Nursing, relative to these documents.” He continued, “Judge Corrigan talked about certifying that matter for interlocutory appeal, so we have not seen the last of this or heard the final word on it.”
As the hearing drew to a close, the district judge concluded that plaintiffs’ motion for leave to amend their petition should be denied:
“[Mjotions such as this are governed by K.S.A. 60-3703. Those statutes basically provide . . . that the initial question ... is whether the plaintiff has established that there is a probability by clear and convincing evidence that the plaintiff will prevail on the claim.
“The quandary this Court is in is that another district judge has ruled upon the admissibility of various items, information which has been sustained by plaintiff. Judge Corrigan ruled, based upon what both counsel advised me, that the material obtained from the State Board of Nursing was confidential and privileged information.
“I cannot overrule Judge Corrigan. ... I feel that the evidence that would be available for trial at this point in time, based upon everything I have observed in the plaintiffs’ motion, would not . . . show that the plaintiffs would prevail on a claim at the time of trial.”
The district judge continued: “I will state, although I think it is meaningless, that if the items and information from the State Board of Nursing were admissible, there would be sufficient grounds [for granting leave to amend].” Thus, the court denied plaintiffs leave to add a claim for punitive damages.
For reasons not apparent from the record, the matter lay dormant until October 1996, when another district judge signed the order that stated rulings on St. Francis’ two motions and plaintiffs’ motion challenging the constitutionality of the privilege statutes, incorporated findings and conclusions from the June 14, 1995, hearing, and certified the rulings for appeal. Exhibit B to the district court order is identified as “documents obtained from the Kansas State Board of Nursing relative to the Board’s investigation of Ann Locke, RN.”
The certified rulings are as follows:
1. St. Francis’ motion for a protective order “regarding the records of Ann Locke, RN, in the possession of the Kansas State Board of Nursing” is granted. “Those records may not be used for any further purpose by plaintiffs in this case.”
2. St. Francis’ motion for a protective order and an order quashing the depositions of Patsy Johnson, Harry Holloway, Diane Glynn, and others is granted.
3. The district court expressly found that the witnesses, documents and information “sought by plaintiffs in Exhibits B and C [Business Records Subpoena and St. Francis’ second motion for protective order] are protected by K.S.A. 65-1135, 65-4915, 65-4922, 65-4923 and 65-4925.”
4. The district court expressly found that the statutes identified in No. 3 are constitutional.
As a preliminary matter, we need to dispose of the appellees’ motion to dismiss this appeal. St. Francis filed a motion to dismiss the appeal for lack of jurisdiction on the ground that the notice of appeal was not timely filed in the district court. Appellants filed suggestions in opposition to the motion. On February 21, 1997, the Court of Appeals ordered that the motion would be considered by the hearing panel. In July, this court transferred the case from the Court of Appeals with appellees’ motion to dismiss still pending.
The procedure for an interlocutory appeal in a civil case is established by statute and rule. K.S.A. 60-2102(b) provides, in part:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order. The court of appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within 10 days after the entry of the order under such terms and conditions as the supreme court fixes by rule.”
Supreme Court Rule 4.01 (1997 Kan. Ct. R. Annot. 26) provides, in part:
“If permission to appeal is granted, the notice of appeal shall be filed in the district court within the time fixed by K.S.A. 60-2103, for taking an appeal or within ten (10) days after permission to appeal is granted, whichever is later. Within ten (10) days after such filing, a certified copy of the notice of appeal, a copy of any request for transcript or statement that no transcript will be requested, and an original and one copy of the docketing statement required by Rule 2.041 shall be filed with the clerk of the appellate courts. The appeal shall thereupon be deemed docketed.”
K.S.A. 60-2103 provides, in part:
‘When an appeal is permitted by law from a district court to an appellate court, the time within which an appeal may be taken shall be 30 days from the entry of the judgment ....
“A party may appeal from a judgment by filing with the clerk of the district court a notice of appeal.”
St. Francis’ argument is that when the Court of Appeals granted permission for appellants to appeal, more than 30 days had elapsed from the entry of the district court’s order from which the appeal was being taken. Thus, 10 days from the date permission to appeal was granted was the controlling deadline for filing the notice of appeal in the district court. Permission was granted on December 10,1996; notice of appeal was filed in the district court on January 3, 1997. Therefore, according to St. Francis, the notice of appeal was untimely. St. Francis concludes: “Where a party fails to timely file a notice of appeal as required by statute, this Court lacks jurisdiction to consider the appeal.”
Appellants advocate interpreting Rule 4.01 to give 30 days after permission to appeal is granted in regular civil actions and 10 days in other cases — probation and juvenile matters, for instance. In this way, the appellate court’s granting permission to appeal would be treated as the appealable order. This argument defies logic and has no merit.
We agree with appellees that the notice of appeal was untimely. We do not agree that this court lacks jurisdiction to consider the appeal. There is no statutorily set period of time in which the notice of appeal must be filed in the district court in an interlocutory appeal. The 10-day period is established by rule of this court and, hence, is not jurisdictional. K.S.A. 60-2103 establishes a 30-day period from the entry of a final judgment and applies only to an interlocutory appeal by virtue of its incorporation in this court’s Rule 4.01. As discussed in Jones v. Continental Can Co., 260 Kan. 547, 558, 920 P.2d 939 (1996), we would violate the separation of powers doctrine if we were to expand a clearly stated statutory period within which an appeal must be filed by the use of procedural rules. Here, since there is no clearly stated statutory period within which notice of appeal must be filed, we are under no comparable constraint. Thus, it is within the court’s discretion to consider this appeal.
The purpose of an interlocutory appeal is to resolve a “controlling question of law” that would materially expedite a final determination in the case. Failure to resolve the issues raised in this appeal would cause further delay and not benefit the parties or serve any useful purpose. Justice would not be served if we refused to address the issues at this time. The motion to dismiss the appeal is denied.
We first consider whether the documents at issue are protected by statute. The “Protective Order and Order Granting Other Discovery Relief” filed by the district court on October 21, 1996, indicates that the documents obtained by plaintiffs’ counsel from the Board are designated in the record as Exhibit B to the order. Examination of Exhibit B reveals that there are two categories of contested documents — those generated by the hospital and those generated by the Board. The Board’s documents are:
1. Board’s Investigative Summary, which is signed by Harry Holloway, Investigator, and dated June 9, 1993. The source of the report that seems to have alerted the Board to the incident has been blacked out.
2. Handwritten notes and typewritten summaries of interviews of Debbie Springer and Pat Howell. Howell is identified as Locke’s supervisor at St. Francis. Springer is apparently a nurse employed at St. Francis.
3. A second document titled “Investigative Summary.” It is not signed, it is dated October 27,1992, and it is quite a bit less detailed than the later summary. The last paragraph states:
“On October 21,1992,1 travelled to Wichita, Kansas and met with Mary McHugh, Director of Nursing Services at St. Francis and issued a Subpoena for the complete patient records on this incident and copies of the Disciplinary action forms and Risk Management/Q.A. minutes concerning this incident. This information was delivered to me along with an affidavit verifying the information to be true and accurate copies.”
The hospital’s documents are:
4. A form titled “Disciplinary Action Documentation” is filled out for Ann Locke. It is signed by Department Director Kathy Conley and by Debra Springer, RN, who is identified as “witness.” Both signatures are dated “8-5-92.” Under “Type of Action,” the box for “Termination Documentation” is marked. Locke’s behavior is described as follows: “Failure to meet job standards as it pertains to an inaccurate assessment of a critical patient’s condition. The inaccurate assessment resulted in a delay of further treatment which may have contributed to the patient’s death.”
5. A form tided “Disciplinary Action Form” is filled out for Ann Locke. It indicates diat Locke was suspended for 3 days “for investigation of the [Adams] situation.” It is signed by Kafhy Conley and dated “7-27-92.”
6. Another Disciplinary Action Form is filled out for Ann Locke. It bear's an unreadable supervisor’s signature and is dated “7-18-92.” The identified problem is five unscheduled absences between mid-October 1991 and mid-July 1992.
7. A third Disciplinary Action Form filled out for Ann Locke. This one is signed by supervisor Patricia Howell and department director Kathy Conley, and is dated “3-24-92.” The following situation is described:
“Failure to meet job standards in relation to quality, quantity, & timeliness of work. On March 5, 1992, Ann was assigned to be primary caregiver of a level II trauma pt. by BC personnel. Ann initially refused, instead wanting an inexperienced _ [illegible]. Ann reluctantly provided primary care. Her lack of confidence in caring for critical/trauma pts & lack of initiative to seek nursing duties is a great concern.”
Actions to be taken to improve her performance include: “Ann was assigned to .2 experienced RN’s to share care of critical pts in effort to [increase] her comfort [with] these cases. After a 30 day period, Ann expressed she felt her level of comfort had improved. Clinical pract. does not reflect this.”
8. A fourth Disciplinary Action Form filled out for Ann Locke involves attendance, specifically tardiness.
According to the parties, the statutes at issue are K.S.A. 1997 Supp. 65-1135, K.S.A. 1997 Supp. 65-4915, K.S.A. 65-4922, K.S.A. 65-4923 and K.S.A. 65-4925. K.S.A. 1997 Supp. 65-1135 was a 1993 addition to the Kansas Nurse Practice Act. It provided, in part:
“(a) Any complaint or report, record or other information relating to the investigation of a complaint about a person licensed by the board which is received, obtained or maintained by the board is confidential and shall not be disclosed by the board or its employees in a manner which identified or enables identification of the person who is the subject or source of such information . . . .”
There are some exceptions to this rule, and plaintiffs contend that the exception stated in subsection (a)(1) applies in the circumstances of the present case. It provides that records are confidential and shall not be disclosed in a manner which identifies or enables identification of the subject person or source of information except “[i]n a disciplinary proceeding conducted by the board pursuant to law or in an appeal of the order of the board entered in such proceeding, or to any party to such proceeding or appeal or such party’s attorney.”
In September 1994, the Board initiated disciplinary proceedings against Ann Locke. In Count I of the petition, Locke was charged with professional incompetency in failing to notify a physician of Adams’ condition; in Count II, in the alternative, she was charged with unprofessional conduct for the same failing. In February 1995, the Board and Locke entered into a consent agreement that “there are reasonable grounds to believe [Locke] violated the [Kansas Nurse Practice] Act” and Locke pled no contest to Count II of the petition against her. “Pursuant to the disciplinary remedies available in K.S.A. 65-1120,” Locke’s license to practice as a registered professional nurse was suspended for 1 year, but the suspension was conditionally stayed so that she could continue to practice.
St. Francis treats the 65-1135(a)(l) exception as if its only significance were as a possible nexus to the Open Records Act, K.S.A. 45-215 through 45-223:
“Although K.S.A. 1996 Supp. 65-1135(a)(l) creates an exception allowing the use of confidential Nursing Board information as part of a Nursing Board ‘disciplinary proceeding,’ such a use by no means makes the information ‘discoverable’ under the Open Records Act. On the contrary, the Open Records Act specifically excludes release of such records. K.S.A. 1996 Supp. 45-221 states:
‘[(a)] Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
(36) Any report or record which is made pursuant to K.S.A. 65-4922, 65-4923 or 65-4924, and amendments thereto, and which is privileged pursuant to K.S.A. 65-4915 or 65-4925, and amendments thereto.’
Plaintiffs’ claim that the Open Records Act made the subject documents public is simply not supported.”
In the present case, upon receiving the business records subpoena, the assistant attorney general who acts as disciplinary counsel on behalf of the Board sent plaintiffs’ counsel an open records request form with the suggestion that “[m]any of the records you request are available under the Open Records Act. However, please be advised that other records and information are protected by K.S.A. 65-1135, 65-4914, 65-4915 and 65-4921 et seq.” Disciplinary counsel’s letter is dated February 28, 1995, and his signature on the consent agreement is dated March 2, 1995. The peti tion by which the disciplinary proceeding was initiated against Locke was filed in September 1994.
K.S.A. 1997 Supp. 65-4915(b) provides:
“Except as provided by K.S.A. 60-437 and amendments thereto and by subsections (c) and (d), the reports, statements, memoranda, proceedings, findings and other records submitted to or generated by peer review committees or officers shall be privileged and shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity or be admissible in evidence in any judicial or administrative proceeding. Information contained in such records shall not be discoverable or admissible at trial in the form of testimony by an individual who participated in the peer review process. The peer review officer or committee creating or initially receiving the record is the holder of the privilege established by this section. This privilege may be claimed by the legal entity creating the peer review committee or officer, or by the commissioner of insurance for any records or proceedings of the board of governors."
“Peer review committee” is defined as “a committee of or employed, designated or appointed by, a health care provider group and authorized to perform peer review.” K.S.A. 1997 Supp. 65-4915(a)(4)(A). “Health care provider group” is defined to include a health care provider, which is defined as “[t]hose . . . entities defined as a health care provider under K.S.A. 40-3401 and amendments thereto.” K.S.A. 1997 Supp. 65-4915(a)(l)(A). K.S.A. 1997 Supp. 40-3401(f) includes “a medical care facility licensed by the department of health and environment” in the definition of health care provider. K.S.A. 1997 Supp. 65-4915(e) provides:
“A peer review committee or officer may report to and discuss its activities, information and findings to other peer review committees or officers or to a board of directors or an administrative officer of a health care provider without waiver of the privilege provided by subsection (b) and the records of all such committees or officers relating to such report shall be privileged as provided by subsection (b).”
K.S.A. 65-4922 requires each medical care facility to establish and maintain an internal risk management program. Subsection (g) provides:
“Any reports and records reviewed or obtained by the department and in the department’s possession, pursuant to subsection (a) of K.S.A. 65-4925, and amendments thereto, shall be confidential and privileged and not subject to discovery, subpoena or legal compulsion for their release to any person or entity, nor shall they be admissible in any civil or administrative action other than a disciplinary proceeding by the department.”
K.S.A. 65-4923 requires health care providers and medical care facility agents and employees to report incidents in which the care may have been substandard and there was a reasonable probability of injury to a patient to appropriate authorities. K.S.A. 65-4925(a) provides:
“The reports and records made pursuant to K.S.A. 65-4923 . . . and amendments thereto, shall be confidential and privileged, including:
(1) Reports and records of executive or review committees of medical care facilities or of a professional society or organization;
(2) reports and records of the chief of the medical staff, chief administrative officer or risk manager of a medical care facility;
(3) reports and records of any state licensing agency or impaired provider committee of a professional society or organization; and
(4) reports made pursuant to this act to or by a medical care facility risk manager, any committee, the board of directors, administrative officer or any consultant.
“Such reports and records shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and shall not be admissible in any civil or administrative action other than a disciplinary proceeding by the appropriate state licensing agency.”
The protection conferred on the documents produced by the Board is based strictly on the statutes quoted above. Interpretation of a statute is a question of law, and this court’s review is unlimited. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). In interpreting these statutes, we must necessarily address the constitutionality of the statutes as applied in the present case.
The rules of construction which guide us have been stated by this court numerous times. The fundamental rule of statutory construction is that the intent of the legislature governs: “In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” State v. Le, 260 Kan. 845, Syl. ¶ 3, 926 P.2d 638 (1996).
“A statute is presumed constitutional and all doubts must be resolved in favor if its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. ¶ 2, 930 P.2d 1 (1996), cert. denied 137 L. Ed. 2d 1029 (1997).
Plaintiffs raise a number of questions about the applicability of the statutes in this case — standing, statutory exception, overly broad interpretation of peer review activity, and overly broad interpretation of risk management activity. Plaintiffs are correct in contending that the party seeking protection bears the burden of showing its applicability to individual documents, but, now that the matter is on appeal from a protective order, the focus shifts from the process to the result. Moreover, there is nothing in the record from which this court could ascertain what the district court’s process or rationale was in determining that the documents were protected. The written protective order that is in the record on appeal, which was filed October 21, 1996, seems to have been made so that there would be a contemporary written ruling to certify for appeal. The district court actually considered and ruled on St. Francis’ motions seeking protection in mid-1995. Although it would seem from a comment made by defendant’s counsel at an unrelated hearing that there was a written ruling on at least one of the hospital’s motions for protection, it does not seem to be included in the record on appeal: “I filed a motion for protective order. The Court ruled upon that motion on June 14, 1995. The Court will find that I have provided that ruling, specifically pages 20 and 23.” The rule followed by this court is that it is the responsibility of an appellant to furnish a record from which the issues may be determined. “Without an adequate record, an appellant’s claim of alleged error fails.” McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994).
Plaintiffs contend that St. Francis has no standing to claim that the documents in the Board’s file are protected by the peer review privilege. They rely on the last sentence of 65-49l5(b), which al lows the privilege to be claimed by the legal entity creating the peer review committee or officer. They argue that “the peer review agency is the State Board of Nursing.” St. Francis argues that appellants misconstrue 65-4915(a)(4)(A) and ignore 65-4915(d). Appellants’ position does not seem to have any support in the statutes. It seems to assume that a peer review can be conducted only at the level of the state Board, but we already have seen that K.S.A. 1997 Supp. 65-4915 and K.S.A. 1997 Supp. 40-3401 may be read together to include the hospital among entities that may conduct protected peer reviews. In contrast, the Board does not have the status of peer review officer or committee under K.S.A. 1997 Supp. 65-4915(a)(4)(A), which defines them in terms of “a health care provider group.” The Board is not “a health care provider group” within the meaning of 65-4915(a) (2). St. Francis states, and it appears from Exhibit B to the Protective Order, that some of the documents produced by the Board for plaintiffs’ counsel were supplied to the Board by St. Francis and that they were from the hospital’s own peer review activities regarding Nichelle Adams’ death. According to St. Francis, it gave those documents to the Board pursuant to K.S.A. 1997 Supp. 65-4915(d), which provides, in part:
“Nothing in this section shall limit the authority . . . of . . . the state board of healing arts or other health care provider licensing or disciplinary boards of this state to require a peer review committee or officer to report to it any disciplinary action or recommendation of such committee or officer [and] to transfer to it records of such committee’s or officer’s proceedings .... Reports and records so furnished shall not be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity and shall not be admissible in evidence in any judicial or administrative proceeding other than a disciplinary proceeding by the state board of healing arts or other health care provider licensing or disciplinary boards of this state.”
In conclusion, there can be little doubt that the hospital, which was required by statute to provide its peer review documents concerning Adams’ death to the Board, would have standing to complain about hospital-generated documents being obtained by plaintiffs’ counsel and used in this judicial proceeding. Plaintiffs’ counsel obtained the documents from the Board rather than from the hos pital, but the hospital was required by the statute to give them to the Board. Moreover, the statute denies that the privileged status of the documents is waived on account of the hospital’s giving them to the Board. In addition, the statute affords some protection for Board-generated documents:
“Any . . . record . . . relating to the investigation of a complaint about a person licensed by the board which is . . . maintained by the board is confidential and shall not be disclosed by the board or its employees in a manner which identified or enables identification of the person who is the subject or source of . . . information. . . .” K.S.A. 1997 Supp. 65-1135(a).
As we have seen, plaintiffs contend that, under K.S.A. 1997 Supp. 65-1135(a)(l), once a disciplinary proceeding is initiated the information is not confidential and is discoverable under the Kansas Open Records Act. They claim that the Board shares this view and provided its file accordingly, but disciplinary counsel’s letter to plaintiffs’ counsel would only partially support the claim. Months after initiating the disciplinary proceeding (and, in fact, at a time when it was very nearly completed), disciplinary counsel wrote that some of the documents in the Board’s file were available under the Open Records Act and some were protected by 65-1135, 65-4914, 65-4915, and 65-4921 et seq. St. Francis relies on K.S.A. 1997 Supp. 45-221(a)(36) of the Open Records Act. It provides that a public agency, in this case the Board, need not disclose records made pursuant to statutory requirements that hospitals maintain risk management programs and report incidents of substandard care, which are privileged under the peer review privilege statute, K.S.A. 1997 Supp. 65-4915(b), or the risk management privilege statute, K.S.A. 65-4925(a). In other words, this provision of the Open Records Act protects hospital-generated documents.
Plaintiffs do not contend that there is a provision of the Open Records Act that pertains to the privilege-shedding effect they claim for initiation of disciplinary proceedings. Instead, their argument seems to rest solely on the language of K.S.A. 1997 Supp. 65-1135(a)(l). As we have seen, however, the statutory exception expressly applies in a disciplinary proceeding or an appeal from an order entered in a disciplinary proceeding. Plaintiffs’ lawsuit against St. Francis and Dr. Ohaebosim is neither. Moreover, the language of K.S.A. 1997 Supp. 65-4915(d) (and substantially similar language in subsection [b]) strongly suggests that the legislature did not intend for the disciplinary proceeding to mark a permanent change from protected to public for the documents in die Board’s file.
The horse’s being out of the bam in this case ironically would work to the plaintiffs’ detriment if the court were to conclude that confidentiality should be reinstated after the disciplinary proceeding. In addition to the protection being lifted during the disciplinary proceeding, the horse also is out of the bam in the sense that the documents were produced for plaintiffs before the hospital sought a protective order from the district court. Of greatest interest to the plaintiffs in the documents is the information that Locke had been disciplined on another, earlier occasion for not taking charge of the care of a seriously ill patient and the names of persons with knowledge of that incident. Information about the event and names of witnesses probably could have been obtained by plaintiffs’ using ordinary discovery tools; subpoenaing the Board’s records was not the only means of getting them. When the Board produced the documents for plaintiffs, however, and then the district court ruled that they were privileged and quashed depositions of persons named in tiiem, the plaintiffs effectively were prevented from developing facts that they could have and probably would have developed had it not been for plaintiffs’ obtaining information from the Board’s documents. The dilemma thus created for the plaintiffs mns counter to at least one of the principles that traditionally guide courts in making decisions concerning confidential material — that a party is required to exhaust available alternative sources of information before seeking a court’s order compelling discovery. See, e.g., Berst v. Chipman, 232 Kan. 180, 189, 653 P.2d 107 (1982).
Berst is instructive, too, for its discussion of the court’s need to balance the conflicting interests of the litigants who respectively wish to obtain and conceal information as well as any public interest in maintaining the confidentiality of the material. The case was before the court on a petition for mandamus filed by the National Collegiate Athletic Association (NCAA), which had been denied protection by the district court for its investigative file concerning possible violations of NCAA rules in a basketball player s recruitment by the University of Alabama. The discovery dispute arose in a libel action against an Alabama newspaper that had published an article about the investigation. The NCAA was not a party to the libel suit. The court quoted Richards of Rockford, Inc. v. Pacific Gas & Elec., 71 F.R.D. 388 (N.D. Cal. 1976), for the Mowing factors to be considered “in striking a balance between discovery and nondisclosure: ‘[T]he nature of the proceeding, whether the deponent is a party, whether the information sought is available from other sources, and whether the information sought goes to the heart of the claim.’ 71 F.R.D. at 390.” 232 Kan. at 188. The court’s discussion continued:
“Additional guidelines considered in balancing claims of privilege with the need for disclosure include the degree of harm that would be caused by disclosure and the type of controversy before the court. [Citations omitted.] Also, the public interest may be a reason for not permitting inquiry into particular matters by discovery.” 232 Kan. at 188-89.
After reviewing a number of decisions from various courts, the court stated:
“We recognize this case presents a conflict between highly valued interests. On the one hand there is an interest in confidentiality, both to prevent embarrassment to persons who have relied on pledges of secrecy in disclosing information to the NCAA or about whom information in the file may relate, and to promote the public interest in the supervision of intercollegiate athletics to prevent corruption in that area and retain a clear line of demarcation between college athletics and professional sports. On the other hand is the interest in disclosure of all facts relevant to the respondent’s defense in the libel action which will contribute to a full and fair determination of the issues in that case. This case presents a situation where a compromise solution must be reached which will sufficiently serve the interests of both parties.” 232 Kan. at 192.
The motion for a protective order in Berst did not rest on statutorily created privilege. Indeed, one of the reasons given by the district court for denying the NCAA’s motion for protective order was that “the movants ‘do not come within any of the privileges created by the statutes of this state.’ ” 232 Kan. at 187. Thus, the limit on discovery was sought by the NCAA “under the court’s supervisory powers over discovery.” 232 Kan. at 187. Nonetheless, because the statutory privileges at issue in the present case were enacted in derogation of the common law, they must be strictly construed so that the applicability of the interest balancing model found in Berst should not automatically be dismissed. See State v. George, 223 Kan. at 507, 510, 575 P.2d 511 (1978). It should be noted that St. Francis argues for a “literal and broad reading” of the privilege statutes based on legislative history and public policy. These considerations, however, rather than determining which principle of statutory construction is applicable, are elements to be weighed by the court against the litigants’ interests in full disclosure of facts relevant to their allegations.
Other arguments made by plaintiffs pose various theories why the statutes relied on by St. Francis do not apply to documents in the Board’s file. They contend that the hospital’s documents, which consist of factual accounts and/or witness statements, are not protected because the statutes confer privilege only on the mental impressions and conclusions of persons actually performing the peer review or risk management function. Privilege does not, according to plaintiffs, pertain to factual accounts or witness statements. Moreover, the argument continues, the documents at issue in this case were not used for either peer review or risk management purposes. Plaintiffs rely primarily on federal cases that interpret the Kansas statutes. See, e.g., Balk v. Dunlap, 163 F.R.D. 360 (D. Kan. 1995); Hill v. Sandhu, 129 F.R.D. 548 (D. Kan. 1990); and Porter v. Snyder, 115 F.R.D. 77 (D. Kan. 1987). St. Francis contends that plaintiffs misconstrue the case law and misunderstand the hospital’s procedures. In particular, the hospital contends not only that the documents generated by the hospital in its disciplinary process are completely protected, but also that the Board-generated documents containing information and names from the disciplinary forms are completely protected.
At issue in Balk were the minutes of meetings of the hospital’s OB/GYN department’s medical staff. Counsel for the hospital described the minutes
“as notes of the discussions which occur during monthly meetings of its OB/GYN medical staff about the following matters: quality of care; potential problems with patient care; review of the care provided by each of the members of the depart ment; compliance with the standard of care required of its members; peer review; quality assurance; and risk management.” 163 F.R.D. at 361.
Counsel also stated that “the minutes are prepared and maintained as part of the requirements and procedures for peer review and risk management imposed upon Mercy as a hospital by K.S.A. 65-4915, 65-4922, 65-4923, and 65-4925.” 163 F.R.D. at 361. Plaintiff argued that the hospital had to provide additional, detailed information about the documents. The federal district court disagreed; “The designation departmental staff minutes generically suggests the kind of documents which the statutes purport to protect against subpoena and discovery.” 163 F.R.D. at 363. In the present case, although plaintiffs’ counsel cites Balk, there is no attempt in the brief to distinguish the documents at issue there from those at issue here.
At issue in Hill were documents submitted to the hospital by a physician seeking staff privileges. As appellants represented, the federal court distinguished between documents created by a peer review committee and information supplied to the committee for review:
“Kan. Stat. Ann. § 65-4915(4)(b) clearly states that ‘the reports, statements, memorandums, proceedings, findings, and other records of peer review committees or officers shall be privileged . . . .” [Emphasis added]. The language clearly does not include reports reviewed by the committee. See Porter v. Snyder, 115 F.R.D. 77, 78 (D. Kan. 1987). In Porter, Judge Kelly found that the analogous language of the risk management privilege, Kan. Stat. Ann. § 65-4925, did ‘not include incident reports which [were] not reports of the review committee, but rather [were] contemporaneous statements of fact relating to incidents which [were] reviewed by the committee. Thus, incident reports are distinguishable from the committee’s reports and are not included within 65-4925(a)’s protection.’ [Emphasis supplied.] Porter, 115 F.R.D. at 78. No reason appears why the same analysis is not applicable to Kan. Stat. Ann. § 65-4915.” 129 F.R.D. at 550.
The federal district court noted that, under a broader view, “virtually all medical and hospital records would be protected as privileged simply by sending them to the peer committee for review.” 129 F.R.D. at 551.
The definition of “peer review” in K.S.A. 1997 Supp. 65-4915(a)(3) is quite broad, and it includes disciplinary functions:
“ ‘Peer review’ means any of the following functions:
(A) Evaluate and improve the quality of health care services rendered by health care providers;
(B) determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care;
(C) determine that the cost of health care rendered was considered reasonable by the providers of professional health services in this area;
(D) evaluate the qualifications, competence and performance of the providers of health care or to act upon matters relating to the discipline of any individual provider of health care',
(E) reduce morbidity or mortality;
(F) establish and enforce guidelines designed to keep within reasonable bounds the cost of health care;
(G) conduct of research;
(H) determine if a hospital’s facilities are being properly utilized;
(I) supervise, discipline, admit, determine privileges or control members of a hospital’s medical staff;
(J) review the professional qualifications or activities of health care providers;
(K) evaluate the quantity, quality and timeliness of health care services rendered to patients in the facility;
(L) evaluate, review or improve methods, procedures or treatments being utilized by the medical care facility or by health care providers in a facility rendering health care.” (Emphasis added.)
A peer review officer or committee is defined as ‘‘[a]n individual employed, designated or appointed by, or a committee of or employed, designated or appointed by, a health care provider group and authorized to perform peer review.” K.S.A. 1997 Supp. 65-4915(a)(4)(A).
Under the statutory definition, the function of admitting members of a hospital’s medical staff is peer review. K.S.A. 1997 Supp. 65-4915(a)(3)(I). The federal court determined in Hill, however, that documents submitted by a physician who seeks to be admitted as a member of a hospital medical staff are not peer-review-protected documents because they were not generated by the peer review officer or committee or did not “ ‘delve into the mind’ ” of the peer review officer or committee. 129 F.R.D. at 551. The federal court firmly rejected the notion that documents generated in a hospital would be privileged simply because they “could be useful to a peer review officer or committee in performing its duties.” 129 F.R.D. at 551. We agree; however, in the present case, the disciplinary forms were generated as part of the function of evaluating the performance of a professional nurse — a health care provider within the definition of 65-4915 — and acting upon matters relating to the discipline of her as an individual provider of health care. They were not documents prepared outside the hospital or independently from the disciplinary process, as was the case in Hill with Dr. Sandhu’s documents, which he submitted to the hospital when seeking staff privileges. Moreover, the persons who signed Locke’s disciplinary forms as supervisor and department director would seem to fit within the statutory definition of peer review officer or committee. Finally, it may be noted that the statutory scheme, as reflected in the language of 65-4915(d), reinforces the impression that the hospital disciplinary forms in the Board’s file are part of the peer review process as envisioned by the legislature. The Hill rationale is discussed at greater length in connection with the constitutional question raised by the plaintiffs.
This impression is not altered by the reasoning of the decision in Porter. The question in that case was whether an incident report was protected under K.S.A. 1986 Supp. 65-4925(a), the risk management privilege statute. The federal court noted that the incident report was made pursuant to K.S.A. 1986 Supp. 65-4923, which required persons with “ ‘knowledge that a health care provider has committed an act which is or may be below the applicable standard of care or which may be grounds for disciplinary action’ ” (quoting K.S.A. 1986 Supp. 65-4923[a]) to report their knowledge. 115 F.R.D. at 78. The statute further provided that the report would be made to a manager, who would “ ‘refer the report to the appropriate executive committee or professional practices peer committee.’” 115 F.R.D. at 78 (quoting K.S.A. 1986 Supp. 65-4923[a][2]). It was up to the committee to investigate the report and take appropriate action. The reports and records of executive or review committees were privileged. 115 F.R.D. at 78 (quoting K.S.A. 1986 Supp. 65-4925[a][1]). The federal district court stated that the privilege did not extend to ‘‘incident reports which are not reports of the review committee, but rather are contemporaneous statements of facts relating to incidents which are reviewed by the committee. Thus, incident reports are distinguishable from the committee’s reports and are not included within 65-4925(a)’s protection.” 115 F.R.D. at 78. In the present case, St. Francis did not rely solely on a risk management privilege.
We conclude, from the record before this court, that the following five documents, which were produced by the Board pursuant to plaintiffs’ counsel’s business records subpoena, are protected by a literal reading of the peer review privilege set out in K.S.A. 1997 Supp. 65-4915(b) and (d): a form titled “Disciplinary Action Documentation” and forms titled “Disciplinary Action Form.” The other three documents at issue were not hospital generated. They were generated by the Board or its agents as part of its investigation of a complaint against Locke. They are: Investigative Summary, dated June 9, 1993; Investigative Summary, dated October 27, 1992; and handwritten notes and typewritten summaries of interviews of Debbie Springer and Pat Howell. In addition, the hospital is not in a position to assert a privilege with regard to these Board-generated documents.
As we have seen, though, the applicability of one or more of the health care statutory privileges to a document do not end our inquiry. The impact of the document’s going public in a disciplinary proceeding may be taken into consideration, and the conflicting interests of the parties and the public are to be weighed into the deliberations. Last, we must also construe the statute so that its application in the present case is constitutional.
The plaintiffs argue that the health care privileges as applied in this case are unconstitutional. The district court made the following ruling: “This Court specifically finds that K.S.A. 65-1135, 65-4915, 65-4922, 65-4923 and 65-4925 are constitutional and, in so doing, acknowledges Via Christi’s submission of legislative history (Exhibit F).” As noted in the statement of facts, plaintiffs sought a ruling on the constitutionality of the statutes in a motion filed in August 1995, and the only indication in the record that the motion was denied is the single sentence in the certification order. If the district court’s reasoning was recorded, it was not designated for the record on this appeal. On appeal, plaintiffs’ argument centers on due process questions raised by the district court’s unrefined application of privilege.
In addition to the briefs of the parties on this issue, there is for the court’s consideration the brief of amici curiae Kansas Hospital Association and Kansas Medical Society. They state that they are “voluntary membership organization[s]” of hospitals and doctors. They state that they are interested in the outcome of this appeal because, as health care providers, they are required by statute to conduct peer review and risk management functions. They predict that “[i]f the peer review and risk management privileges are deemed unconstitutional, . . . [f]ull, frank, open, honest and critical evaluation of health care services would be hampered [and] [p]rograms reviewing services would become less effective.” Their brief, however, is of little benefit because they discuss a direct attack on the constitutional validity of the statute rather than the due process problem with the broad application given to the statute by the district court’s ruling.
Plaintiffs argue that their constitutional right to procedural due process is violated by restrictions on their proof that are the consequence of the district court’s application of the privilege statutes. In particular, they seem to be objecting to the district court’s quashing depositions on the strength of St. Francis’ assertions that the Board’s documents were the source for the witnesses’ names and their information about Locke. Plaintiffs contend that the right to procedural due process and a fair trial
“are so fundamental that they even override exclusionary rules of evidence (i.e., privileges) that are constitutionally grounded. [Emphasis added.] See, e.g., Branzburg v. Hayes, 408 U.S. 666, [33 L. Ed. 2d 626,] 92 S. Ct. 2646 (1972) (civil litigant’s procedural due process right to evidence, from a news reporter’s confidential source, overrides and defeats a reporter’s first amendment privilege).”
Plaintiffs cite decisions from other states for the proposition that “no statutory privilege or trial court evidentiary ruling is valid when it excludes evidence” relevant to a determination. Only those decisions that are relevant and based on constitutional premises will be discussed here.
M. v. K., 186 N.J. Super. 363, 452 A.2d 704 (1982), was a child custody dispute in which the mother attempted to invoke a state statute that made communication between a marriage counselor and the person or persons counseled confidential. The New Jersey court stated:
“Having found this child to be a person entitled to constitutional protections, we find further that the net effect of upholding the privilege in this case would be to deprive this child of due process to which she is entitled; that is, she would ' be denied the right to have introduced in this proceeding material evidence relevant to a determination of what custodial arrangement is in her best interests and welfare. . . .
“The constitutional rights of the infant in this case clearly outweigh the interest of the State in fostering rehabilitation of unhealthy marriages. In balancing these factors the scales of justice tip sharply in the infant’s favor, and on this basis we cannot let the privilege prevail in this or any other child custody case.” 186 N.J. Super. at 373-74.
The New Jersey court concluded that permitting the statutory privilege to be invoked would interfere with the child’s constitutional protection. Thus, it declared that the statute “in child-custody disputes, impermissibly interferes with the aforesaid rights of children, and is unconstitutional.” 186 N.J. Super. at 374.
Linder v. Smith, 193 Mont. 20, 629 P.2d 1187 (1981), was a declaratory judgment proceeding in which the Montana Supreme Court found that the Montana Medical Malpractice Panel Act was constitutional with the exception of the following provision: “ ‘No statement made by any person during a hearing before the panel may be used as impeaching evidence in court.’ ” 193 Mont, at 30 (quoting Mont. Code Ann. § 27-6-704[2]). The Act made it mandatory for a litigant to submit a medical malpractice claim to a screening panel, but did not bind the litigant with the decision of the panel or permit its being admitted in a subsequent judicial action. The problem with the one offending provision was expressed by the Montana court as follows:
“It is fundamental to our adversarial system that litigants retain the right to impeach the sworn testimony of a witness testifying against them. We are mindful that this provision was enacted to aid the fact-finding by the panel and to preserve the confidentiality of the proceedings. But we cannot say that a litigant will receive a full and fair hearing if he is unable to fully cross-examine in court the witnesses that testified in the prior hearing.” 193 Mont. at 30.
Although the court did not expressly find a due process violation, it impliedly did so. The court invalidated this provision of the Act and severed it before declaring that the remaining portions of the Act were constitutional. 193 Mont, at 30, 34.
Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo. 1987), is a medical malpractice action in which the Wyoming Supreme Court considered the scope of the discovery privilege for records and data relating to a physician’s accreditation and hospital activities. Of all the cases cited by plaintiffs for the proposition that a statutory privilege cannot be valid if it withholds evidence that goes to the heart of determination of the litigant’s claim, this one is most nearly on point with the present case. For this reason, even though it was not decided on constitutional grounds, it will be discussed here. The lawsuit included “a claim that the hospital was negligent in granting the doctor the privilege to practice in that hospital as an obstetrician.” 741 P.2d at 1087. The privilege statute at issue purported to protect “ ‘[a]ll reports, findings, proceedings and data of such hospital medical staff committees.’ ” 741 P.2d at 1087 (quoting Wyo. Stat. § 35-2-602 [1977]). “Hospital medical staff committee” was defined as “ ‘any committee within a hospital, consisting of medical staff members or hospital personnel, which is engaged in supervision, discipline, admission, privileges or control of members of the hospital’s medical staff, evaluation and review of medical care, utilization of hospital facilities or professional training.’ ” 741 P.2d at 1087 (quoting Wyo. Stat. § 35-2-604 [1977]). The Wyoming court stated:
“In order to prove such negligence by the hospital, a plaintiff must have access to information concerning a doctor’s performance. That same information most likely will be considered by and is, pursuant to [the statutory privilege], available to the medical staff committee. A necessary consequence of construing the privilege statute to preclude a plaintiff’s access to all information which is relevant to a doctor’s accreditation, is to prohibit causes of action against hospitals for negligence in the accreditation and maintenance of qualified medical personnel. Thus, in determining the scope of the statutory privilege, we are also deciding whether the legislature, by enacting the privilege statute, intended to abrogate the right to recover for this type of hospital negligence.” 741 P.2d at 1087.
The Wyoming court concluded that the legislature had not intended to block civil suits to recover for injuries caused by a hos pital’s failure to perform its obligation to exercise care in offering and continuing staff privileges to physicians. Thus, it refused to “construe the privilege statute to impliedly prohibit this category of negligence actions.” 741 P.2d at 1088. The statute was construed to protect hospital documents which detail the committee’s “decision-making process, opinion, perspective, or final decisional results” but not materials reviewed by the committee in the course of carrying out its function. 741 P.2d at 1089.
An interesting aspect of the Wyoming opinion is the expression of the court’s belief that the continued availability and vitality of causes of action against hospitals “serve an important public policy — the preservation of quality health care for the citizens of this state.” 741 P.2d at 1088. Because the court believed that lawsuits against a hospital serve a common purpose with a hospital’s medical staff committee, it assigned approximately equal weight to the functions of the hospital medical staff’s committee and the liability suit. In the court’s eyes, too, the shared purpose explained why the information necessary to one would often be the same, or overlap with, information necessary to the other. 741 P.2d at 1089.
The Kansas case relied on by plaintiffs is Hill, 129 F.R.D. 548. Although the documents at issue in that case differ from the ones in the present case, considerations of constitutional limitations on the breadth of the peer review privilege are the same for both. In Hill, the court concluded that the statutory privilege was designed to protect the deliberations of the peer review committee but not information supplied to the committee for its deliberations. 129 F.R.D. at 550. Thus, the court concluded that documents submitted by Dr. Sandhu to the peer review committee in his application for staff privileges were not privileged. Plaintiffs in the present case insist that this holding would remove the hospital’s disciplinary forms from the protected class because they contain factual accounts. The forms, however, also record disciplinary actions. They seem designed to incorporate the functions of fact-gathering and the officers’ or committee’s conclusions and action into one document. With the documents in this form, a literal reading of the privilege statutes seems to protect St. Francis’ disciplinary forms. In Hill, the federal court suggests that a different approach is needed:
“The court’s interpretation of the peer review statute is in line with the public policy of Kansas. By enacting Kan. Stat. Ann. § 65-4915, the Kansas Legislature intended to increase the level of health care in the state by protecting the deliberations of peer review committees. The statute says nothing about eliminating the torts of medical malpractice or the negligent awarding of staff privileges. It likewise says nothing about protecting evidence and information about such causes of action unless that information is reflective of the deliberations of the peer review committee. Had it intended to do otherwise, the legislature could have used language plainly providing for that result.
“If the court adopts the interpretation of the defendants, virtually all medical and hospital records would be protected as privileged simply by sending them to the peer committee for review. The twelve definitions of peer review listed in Kan. Stat. Ann. § 65-4915 encompasses all, or almost all, aspects of the practice of medicine. Many documents and records generated in a hospital or medical practice could be useful to a peer review officer or committee in performing its duties. If a document was to be privileged solely by the virtue of it being reviewed by a peer review officer or committee and the information in those records could not be discovered or admitted into evidence at trial, it would intolerably thwart legitimate discovery and tend to ehminate medical malpractice cases and the discovery of evidence relevant to the awarding of staff privileges contained in documents, records, and papers submitted to the peer review committee. This cannot, in the court’s opinion, be the result intended. Such an interpretation could raise significant constitutional implications.
“It makes little logical sense, in the court’s opinion, to conclude that information about a party, if otherwise discoverable, can be immunized from disclosure simply because it is revealed to a third party, i.e. a peer review committee or other entity. Indeed, prima facie, the disclosure to a third entity, all other things being equal, is usually equated with a waiver of the right to protect otherwise protected information.
“Equity further dictates the instant interpretation of the statute. In a significant number of medical malpractice actions, defendants are aware of the results of the peer review committee and would have access to the documents both favorable and adverse that were presented to the committee. Thus it would seem inequitable for the defendants, such as in this case, to be able to use the advantageous parts of the records in their defense and bar plaintiff from access to those portions, if any, which are disadvantageous to defendant.” 129 F.R.D. at 550-51.
We agree with the above analysis, and it guides us in construing the statutes in the present case. We are also guided by our decision in Berst. In Berst, we recognized that the court must balance the interest of the party in obtaining the information and the interest of the opposing party and public in maintaining confidentiality of the information. The information sought in Berst went to the “heart” of the issue in the case and, thus, we held that the substantive interest in preserving the confidentiality of the information “must give way to assure all the facts will be available for a fair determination of the issues in the libel action.” 232 Kan. at 193.
In United State v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974), the Supreme Court was called on to weigh the Presidential privilege against the needs of the judicial process. The Special Prosecutor subpoenaed certain tape recordings and documents relating to conversations with President Nixon’s aides and advisors. Nixon raised Presidential privilege against disclosure of confidential communications. The Court held that the fundamental demand of due process of law in the fair administration of justice required that the Presidential privilege yield to the specific need for evidence in a pending case. The Court said:
"The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.” 418 U.S. at 709.
Privileges in the law are not favored because they operate to deny the factfinder access to relevant information. The Court in Nixon noted that privileges against forced disclosure are created by the Constitution, statute, or common law, and “[w]hatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” 418 U.S. at 710.
. Plaintiffs in this case complain repeatedly of being deprived of the right to cross-examine witnesses and tihe opportunity to impeach witnesses with inconsistent prior statements. It appears plaintiffs’ counsel has exacerbated this situation and might have obtained the relevant facts for use at trial in spite of the hospital’s asserted privilege. St. Francis even suggests that this court “could allow the depositions, but not in the manner in which plaintiffs have taken them already wherein witnesses were asked questions along the lines: “Isn’t it true you told the Board . . . ?” Nonethe less, the situation plaintiffs find themselves in, knowing that the hospital continued to entrust Locke to assess the conditions of emergency patients despite her demonstrated lack of initiative and self-confidence with critical patients denies the plaintiffs the opportunity to develop or otherwise use that information.
In the present case the legislature granted a peer review privilege to health care providers to maintain staff competency by encouraging frank and open discussions and thus improving the quality of medical care in Kansas. We must weigh that privilege against the plaintiffs’ right to due process and the judicial need for the fair administration of justice. There can be no question that in granting the privilege, the legislature did not intend to restrict or eliminate a plaintiff’s right to bring a medical malpractice action against a health care provider. To allow the hospital here to insulate from discovery the facts and information which go to the heart of the plaintiffs’ claim would deny plaintiffs that right and, in the words of the federal court, “raise significant constitutional implications.” 129 F.R.D. at 551. The constitutional implication was stated by this court in Ernest v. Faler, 237 Kan. 125, 131, 697 P.2d 870 (1985):
“The right of the plaintiff involved in this case is the fundamental constitutional right to have a remedy for an injury to person or property by due course of law. This right is recognized in the Kansas Bill of Rights § 18, which provides that all persons, for injuries suffered in person, reputation or property, shall have a remedy by due course of law, and justice administered without delay.”
We found in Ernest that K.S.A. 2-2457 violated due process by placing an unreasonable impediment to an injured party seeking recovery for the negligent application of chemical pesticides. We held that “[t]he right of a person injured by the tortious act of another to a remedy for his injuries in a court of law is one of the basic constitutional rights guaranteed protection by the Kansas courts.” 237 Kan. 125, Syl. ¶ 3.
In the present case, we conclude that although the interest in creating a statutory peer review privilege is strong, it is outweighed by the fundamental right of the plaintiffs to have access to all the relevant facts. The district court’s protective order and order granting other discovery relief denied plaintiffs that access and thus violated plaintiffs’ right to due process and a fair determination of their malpractice action against the defendants. The information generated by the peer review committee, detailing the committee’s decision-making process, the officers’ or committee’s conclusions, or final decisions, is not subject to discovery by the plaintiffs. The district court has a duty to conduct an in camera inspection and craft a protective order which will permit the plaintiffs access to the relevant facts. Forms and documents containing factual accounts and witnesses’ names are not protected simply because they also contained the officers’ or committee’s conclusions or decision-making process. The court can simply redact that which is protected and grant plaintiffs access to the portions containing the relevant facts.
The district court’s protective orders are reversed, and the district court is directed to proceed in accordance with this opinion.
McFarland, C.J., and Six, J., not participating.
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Kenneth A. Gardner, from his jury convictions of murder in the first degree (K.S.A. 21-3401); aggravated robbeiy (K.S.A. ■ 21-3427); arson (K.S.A. 21-3718); and aggravated burglaiy (K.S.A. 21-3716).
The trial court sentenced Gardner to life without the possibility of parole for 25 years for the first-degree murder conviction, and the court imposed the following sentences for the remaining convictions: 77 months for aggravated robbeiy, 34 months for aggravated burglary, and 19 months for arson. The court ordered the sentences to run consecutively for an effective term of life (with no parole for at least 25 years) plus 130 months. Gardner timely appealed his convictions to this court based on three trial errors.
Gardner contends that the trial court erred in admitting into evidence a pair of his bloodstained jeans and boots and in excluding part of a witness’ testimony as hearsay and lacking in foundation. Gardner also contends the prosecutor made an improper closing argument.
The victim in this case, Vernon Flynn, resided at the home of his uncle, Bobby Flynn, in Kansas City, Kansas. Bobby worked a 12-hour night shift, starting at 5 p.m. and getting off at 5:30 a.m. Vernon worked days, getting off at around 5 p.m. When Bobby left for work on May 1, 1995, at 4 p.m., Vernon was home and his small, red Isuzu truck was parked on the gravel area to the side of the driveway. This is where Vernon usually parked his truck.
Vernon’s cousin, Kevin Brandon, talked to Vernon at approximately 8:30 p.m. on May 1, 1995. According to Kevin, Vernon seemed fine. Bobby returned home from work at approximately 7:30 a.m. on May 2, 1995. He noticed the garage door open a couple of feet. When he opened the garage door all the way, he saw Vernon’s truck parked in the garage. Bobby entered the house through the garage. He saw soot and a substance running down the wall, which he later identified as blood and brain matter. Bobby found Vernon’s body on the floor, with a quilt covering most of Vernon’s upper body. Bobby looked beneath the quilt and saw that most of Vernon’s head was gone. Bobby realized that the soot was not traveling in the air, but was settled. Bobby then realized that a fire had been set in the house but that it was no longer an active fire. Bobby called 911 and waited for the emergency crews in the front yard.
Two fires had been set in the Flynn house in two separate bedrooms. Each of the fires burned itself out before Bobby arrived home, without having to be extinguished by the fire department. This occurred because the house was shut up tight and the fires consumed all the available oxygen.
A forensic pathologist reconstructed the victim’s head during an autopsy and determined that there was a gunshot wound behind the left ear. Death would have been instantaneous. There were also multiple fracture lines in the back of the skull, indicating that there had been a blow to the head prior to the gunshot.
Bobby told the police that there were numerous weapons of different calibers in the house. All the weapons were accounted for except for a British Enfield .303 caliber rifle. Other property from the house and garage was also missing, including a VCR, a skill saw, a drill, a batteiy charger, a roller tool box, a regular tool box that fits on top of the roller tool box, and a spare tool box that contained miscellaneous wrenches, sockets, wire cutters, screwdrivers, and vise grips. The police also discovered that speakers and a stereo system were missing from Vernon’s truck.
Bobby told the police that two people had been at his house sometime during the week prior to the homicide. One of these persons was Gardner, who came to visit Bobby and help him fix his truck.
On May, 1,1995, Gardner had been living at the home of Gerald Nelson in Overland Park, Kansas, for about 2 weeks. Nelson was the maternal step-grandfather of Gardner’s child. Before the murder, Nelson had a discussion with Gardner regarding some of Nelson’s tools which were missing. Nelson told Gardner to replace the tools before Gardner came home again. That night, Gardner did not return home. However, the next day Nelson found some different tools in his home, and Gardner said that the tools were meant to partially replace Nelson’s missing tools.
Michael Hurtado, a friend of Gardner’s, testified that on the evening of May 1, 1995, Gardner came by his house around 9 or 10 p.m. According to Hurtado, Gardner was wearing a white tank top, blue jeans, and a pair of boots. Gardner borrowed a sweatshirt from Hurtado, which Hurtado has not received back. Hurtado tes tified that Gardner asked for a ride, although Gardner did not specify where he wanted to go at first. Hurtado agreed to give Gardner a ride, and Hurtado woke up his girlfriend, Nettie Gordon, who decided to go with them. Gardner pointed the way to go. Gardner told Hurtado to go to a gas station so Gardner could use the pay phone. Hurtado pulled over at the gas station, and Gardner used the phone for about 1 minute. Hurtado and Nettie remained in the car and did not hear any of the conversation.
About 1 minute after Gardner got off the phone, Nettie saw a “little red truck” drive by. The victim drove a red Isuzu pickup truck. Nettie testified that Gardner “started laughing and said he [had] just called that guy to go pick him up at 111th Street and boy, was he going to have a rude awakening when he came home.” Hurtado dropped Gardner off after driving a little further. The exact location where Hurtado and Nettie dropped Gardner off is in dispute, but Nettie showed the police a location which was Vz block from the victim’s home.
Hours later, between 2 and 2:30 a.m. on May 2, 1995, Gardner called David Liter at home. Liter had known Gardner for about 10 years. Gardner asked Liter if he could come by and store some tools at Liter’s residence. Liter agreed to this over the phone, and Gardner arrived at Liter’s house alone about 20 or 30 minutes later. He arrived in a red Isuzu pickup truck, which he parked in Liter’s driveway. Gardner was wearing blue jeans, and Liter did not see any blood on him. Liter helped Gardner unload the truck, which held four tool boxes, a skill saw, a battery charger, speakers, a VCR, a car CD player/radio, an equalizer, an amplifier, and some CDs. Gardner denied that the property was stolen. Before Gardner left, Liter saw the barrel of a rifle behind the seat area of the truck. Liter inquired about purchasing the rifle, but Gardner said that he already promised the rifle to somebody else.
Gardner arrived at Hurtado’s house again. He asked to sleep there, but Hurtado said there was no space. Hurtado told Gardner to ask Clyde Davis for a place to sleep. Gardner arrived at Clyde Davis’ house around 4 a.m. on May 2, 1995. Davis let Gardner sleep on his couch for a few hours. Davis said that Gardner was wearing blue jeans and logging boots that laced all the way to the toe. He indicated that Gardner was dressed “nice and neat.” The next morning, Davis gave Gardner a ride back to Liter’s house. After Gardner and Liter sorted through the tools, Gardner took some of the tools over to Nelson’s house — the place where Gardner had been living and the place where he had to replace some tools before he could return again. Liter and Gardner then returned to Liter’s house. They loaded up the rest of the equipment and took it to Hurtado’s house to sell, which they did. Sometime between the evening of May 1, 1995, and the next afternoon, Gardner shaved off his beard.
Because Bobby Flynn said Gardner had visited him during the week prior to the homicide, a policeman went to the Nelson residence to speak with Gardner on the afternoon of May 3,. 1995. Gardner was not home, but the policeman saw a red tool box sitting in the hallway of the Nelson home. Over the following week, the policeman recovered property from the Nelson residence, including a battery charger, a cordless drill, a circular saw and blade, an electric drill, a triangular file, an abrasive disc, an extension bar for a wrench, a magnetic tool, and a set of sockets. The police also recovered a VCR which Gardner had sold to someone at Hurtado’s house, and Bobby Flynn identified the VCR as belonging to him. Later, Nelson’s wife found a pair of Gardner’s boots under a step in the Nelson house leading from the garage to the utility room. Nelson turned the boots oyer to the police. The police tested the boots and found human blood in two different locations on the left boot. The police also tested a pair of Gardner’s jeans and found two stains of human blood on the outside left leg. Additional tests on both items were unsuccessful because the blood samples were small, old, and contaminated by dirt and dyes.
Further, hair analysis was performed on hair recovered from the victim’s (Vernon Flynn’s) hands. Experts were unable to match the hair to any particular person. The hair did not match Gardner’s hair. A comparison of the hair to Vernon’s hair was inconclusive. The hair analyst found numerous inconsistencies, including racial inconsistencies, between the recovered hair and Vernon’s hair. The hair analyst testified that a comparison of the sample hair to Ver non’s hair was difficult because most of Vernon’s hair was destroyed by the gun blast.
A man and his son who had been walking by a creek close to the Flynns’ home found a British Enfield .303 caliber rifle in the creek on May 5, 1995, and turned it over to the police the next day. A firearms examiner stated that bullet fragments recovered from the Flynns’ house had been fired from a .303 caliber British rifle. He said the marks on the bullet fragments were consistent with marks on a test bullet fired from the British rifle. However, the firearms expert testified that he could not conclusively say the bullet fragments recovered from the crime scene had been fired from the rifle found in the creek.
Gardner told the police that he did not take any property from the Flynns’ house or kill Vernon Flynn. Rather, Gardner stated that on the night of the crime, he was at a “dope house.” When he was leaving the dope house, Gardner claimed, a man approached him and offered him some tools in exchange for an “eight ball.” Gardner accepted the deal. Then, Gardner states, this man allowed Gardner to use the man’s truck, a red Toyota pickup, to drive the tools over to Liter’s house by himself. Gardner told the police that after he dropped the tools off at Liter’s house, he returned the truck to the man at the drug house. Gardner indicated that he traded for tools all the time. Then, Gardner claims, the unknown man drove him to Hurtado’s house in a different vehicle.
The jury did not believe Gardner’s alibi. Further facts will be discussed as they become relevant.
I. BLOODSTAINED JEANS AND BOOTS
During the trial, the assistant laboratory director for the Johnson County Criminalistic Laboratory testified that he examined a pair of Gardner’s blue jeans and found two small drops of blood on the outside left leg of die jeans. A blood analyst testified that her testing revealed that the blood on the jeans was human in origin. Likewise, two spots of human blood were detected on a pair of Gardner’s boots (the left boot), but further testing was inconclusive. The blood analyst stated fliat there were additional tests which could have been performed by other agencies, specifically Cellmark and Gene Screen, but the evidence was not submitted to those agencies for further testing.
At the close of the State’s case, the State moved to admit the jeans and boots into evidence. Defense counsel objected, stating that the boots and jeans had not been sufficiently identified. The trial court overruled the objection and admitted the items into evidence.
The defense counsel called Clyde Davis as a defense witness. Davis testified that Gardner was not wearing the jeans in question when he came to Davis’ house in the early morning hours of May 2, 1995. Davis stated that Gardner was dressed “nice and neat,” while the jeans at issue were filthy.
Gardner concedes that there was testimony he was wearing jeans and logging boots in the late evening of May 1 and the early morning hours of May 2. However, Gardner points out that there was no evidence the jeans and boots introduced into evidence were the actual clothes he wore on May 1 or 2. None of the witnesses were specifically asked to identify the boots admitted into evidence as the same ones worn by Gardner on May 1 or 2. Further, none of the witnesses were specifically asked to identify the jeans admitted into evidence as the same ones worn by Gardner on May 1 or 2. In fact, Davis specifically testified that the jeans at issue was not the pair of jeans worn by Gardner on May 2. Moreover, there was evidence that Gardner was a mechanic, a job in which it is not uncommon to sustain minor cuts, resulting in the presence of blood on one’s clothing. Thus, Gardner claims the jeans and boots were irrelevant evidence which was improperly admitted into trial.
In support of his position, Gardner cites State v. Walker, 239 Kan. 635, 722 P.2d 556 (1986). In Walker, the defendant was charged with a shooting murder. The defendant’s home was searched, and several items of clothing were taken to determine whether the clothing contained bloodstains. A KBI forensic examiner tested the clothing. The tests indicated blood on four of the items examined, but the tests were inconclusive as to whether the blood was of human or animal origin. Further, the forensics examiner could not determine how long the bloodstains had been on the clothing or whether all the stains came from the same source. The clothing was admitted into evidence at trial, and the forensic examiner testified regarding the clothing. The State wanted the jury to infer that the blood on the clothing was the victim’s blood.
However, no one testified regarding what type of clothing the defendant was wearing on the night of the shooting. Thus, the Walker court found that there was no evidence to connect the blood found on the defendant’s clothing with the shooting of the victim. Since there was no logical connection between the clothes and the suggested inference that the blood on the clothes originated from the victim, this court held in Walker that the clothing evidence was irrelevant. This court concluded that the trial court was in error to admit the bloodstained clothing into evidence at trial. However, the Walker court found that the improper admission of the evidence was harmless error because other substantial and uncontroverted evidence of the defendant’s guilt existed.
Unlike the Walker case, the State presented evidence of the clothes worn by Gardner during the time the crimes occurred, which matched the description of the bloodstained clothing at issue. Thus, there was some evidence presented at trial which indicated a connection between Gardner’s bloodstained jeans and the murder of Vernon Flynn. For instance, Hurtado testified that when Gardner came over to his house on the evening of May 1, 1995, Gardner was wearing a white tank top and blfie jeans. Liter testified that Gardner was wearing blue jeans when Gardner came over to Liter’s house in the early morning hours of May 2, 1995. Vernon Flynn was killed sometime between the evening of May 1, 1995, and the morning of May 2, 1995.
Experts at the murder scene testified that blood and body parts were splattered everywhere. One expert testified that it would be reasonable to find blood on the shooter’s clothing.
One detective specifically testified that the bloodstained jeans at issue were removed from Gardner the night of his arrest on May 6, 1995. The State acknowledges Davis’ testimony in which he stated that the jeans at issue were not the ones Gardner wore on May 2,1995, because those jeans were neat and clean and the jeans at issue were filthy. However, the State points out that during cross-examination, Davis admitted that he had no idea when the jeans at issue became dirty. The State contends that it is reasonable to assume Gardner wore the jeans from May 2, when he shot the victim and got blood on them, to May 6, when he was arrested. In this case, the same jeans could have been neat and clean when Davis saw them on May 2, and become filthy from constant wear by the time Gardner was arrested on May 6. Gardner works on cars, thus exposing his clothing to dirt and grime.
Further, there was evidence presented at trial to indicate a connection between Gardner s bloodstained boots and the murder of Vernon Flynn. The police recovered the bloodstained boots on May 8,1995, from Gerald Nelson’s house, which is where Gardner had been residing. Nelson’s wife found the boots under a step leading from the garage to the utility room, and Nelson turned the boots over to the police. Hurtado testified that when Gardner came over to his house on the evening of May 1, 1995, Gardner was wearing boots. Davis testified that when he saw Gardner in the early morning of May 2, Gardner was wearing logging boots that laced all the way down to the toe. Davis’ description of the boots Gardner was wearing on May 2, 1995, matches the bloodstained boots found in Nelson’s home. Further, the boots were found in an unusual place in the Nelson home — under a step leading from the garage to the utility room. See State v. Nicholson, 225 Kan. 418, 590 P.2d 1069 (1979) (affirming trial court’s admission of evidence into trial because the items were found in an unusual place and were the same type of items used in the charged crime).
Finally, there is evidence placing Gardner inside the victim’s home during the time the witnesses saw him wearing jeans and boots which match the description of the bloodstained exhibits. For instance, Liter testified that the truck which Gardner used to transport the tools to his house was the victim’s truck. Bobby Flynn found that truck inside the garage. The garage connects to the room where the victim was found dead.
A trial court’s ruling regarding the admission of evidence is subject to an abuse of discretion standard of review. State v. Vaughn, 254 Kan. 191, 204, 865 P.2d 207 (1993).
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. ... If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.” State v. Stallings, 262 Kan. 721, Syl. ¶ 6, 942 P.2d 11 (1997).
Under K.S.A. 60-401(b), relevant evidence is evidence “having any tendency in reason to prove any material fact.” “For evidence of collateral facts to be competent, there must be some material or logical connection between them and the inference or result they are designed to establish.” State v. Walker, 239 Kan. at 644.
“ ‘The admissibility of physical evidence . . . is to be determined on the basis of its relevance in connection with the accused and the crime charged. [Citations omitted.] . . . The determination of relevancy is a matter of logic and experience, not a matter of law. [Citations omitted.] Furthermore, when a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it. [Citation omitted.]’ ” State v. Garcia, 243 Kan. 662, 676, 763 P.2d 585 (1988), overruled on other grounds State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992) (quoting State v. Nicholson, 225 Kan. 418, 419-20, 590 P.2d 1069 [1979]).
As a matter of logic and experience, the bloodstained jeans and boots are connected to Gardner and the murder charge. Witnesses testified that they saw Gardner in jeans and boots, matching the description of the evidence at issue, around the same time the murder occurred. The crime scene was splattered with blood. Davis saw Gardner driving the truck that ended up at the crime scene. The blood spots on the exhibits in question tested positive as human blood. The trial court properly admitted the jeans and boots into evidence for such weight and effect as the jury saw fit to give them. It is true that Davis testified the jeans at issue were not the jeans Gardner wore on the night the victim was killed because those jeans were neat and clean, while the jeans at issue were filthy. The jury heard this testimony and had the right to give it the weight and effect it saw fit, up to and including the point of disregarding the jeans and ignoring the blood spots. The jury also had the right to find that the jeans at issue were the same jeans Davis saw Gard ner wearing May 2,1995, and that they had simply gotten dirty by constant wear over the course of the week until Gardner was arrested on May 6, 1995. Simply because the jury could weigh this evidence in a different way does not make it irrelevant.
The trial court properly admitted the bloodstained jeans and boots into evidence for the jury to assign them whatever weight they chose. Such admission was not arbitrary, fanciful, or unreasonable. Reasonable persons would take the view adopted by the trial court. The trial court did not abuse its discretion on this issue and was not in error. This issue fails.
II. CLOSING ARGUMENT
Gardner contends that the prosecutor misstated the facts or presented facts which were not in evidence on three occasions during the State’s closing argument. First, Gardner claims that the following statement made by the prosecutor in closing argument was improper: “You remember the testimony about the clothing from the house that there was boots and clothing/oimd under tools that were taken from the house of the victim.” (Emphasis added.) The defense counsel lodged a contemporaneous objection to this statement, but the trial court overruled it.
On appeal, Gardner contends that this statement is not supported by the evidence presented at trial. Gardner concedes that some of his clothes, including the boots, were found in the Nelsons’ garage, and he also concedes that some of the victim’s tools were found in the Nelsons’ garage. However, Gardner argues that there was no evidence presented at trial as to the location of the clothes in relation to the tools. Nelson testified that his wife found the boots under a step in the garage, with some items over them, but he did not specify what those items were, and in particular he did not say that the boots were under any tools. Thus, Gardner claims that the prosecutor’s statement was a misstatement of fact. Further, Gardner argues that this misstatement of fact was prejudicial to him because it improperly linked the bloodstained boots with the tools.
In Kansas, the prosecution is given considerable latitude in closing argument and in presenting its theory of the case to the jury. State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991); State v. Bird, 238 Kan. 160, Syl. ¶ 14, 708 P.2d 946 (1985). However, “[n]o rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence. The stating of facts not in evidence is clearly improper.” State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994).
There was no evidence admitted at trial to indicate that the bloodstained boots found in the Nelson’s home were covered up by the victim’s tools. This comment, made in closing argument by the prosecutor, was a misstatement of fact. However, the misstatement of fact constitutes harmless error. In deciding whether improper remarks by the prosecutor during closing argument constitute harmless error, the reviewing court must be able to find beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. State v. Zamora, 247 Kan. 684, 690, 803 P.2d 568 (1990). Such is the case here.
The jury heard testimony regarding the bloodstained boots and where they were found in the Nelson home. The jury heard testimony regarding Gardner’s possession of tools owned hy the victim and that some of these tools were found in the Nelson home. The fact that the tools and boots may not have been found in the same place in the Nelson home was of no real import. The State’s improper allegation that the boots and tools were found in the same place in the home was not a significant part of the State’s case. The State made the misstatement of fact in passing and did not rely on it as a significant part of its case. We hold that beyond a reasonable doubt, the prosecutor’s misstatement of fact as to the location of the boots had little, if any, likelihood of changing the juiy’s decision or the result of the trial.
In regard to the two other claimed “misstatements of fact” which are challenged on appeal, Gardner did not contemporaneously object to these statements when they were made at trial. “An issue not presented to the trial court will not be considered for the first time on appeal.” State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 (1996); see also State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995)(timely objection necessary to give the trial court an opportunity to correct alleged trial errors). Gardner acknowledges that he did not object at trial to two of the statements challenged on appeal. However, Gardner contends that the court may address these statements based on State v. Henderson, 226 Kan. 726, 736-37, 603 P.2d 613 (1979). In Henderson, the defendant challenged on appeal some statements the prosecutor made in closing argument. The defendant had objected to some of these challenged statements at trial and had not objected to others. However, this court considered the unobjected-to statements “insofar as the cumulative effect of improper argument is concerned.” 226 Kan. at 737. Gardner contends that this same rule should apply to this court’s evaluation of the prosecutor’s unobjected to misstatements of fact made in closing argument.
Henderson does not apply in this situation. In Henderson, the court found that the objected-to prosecutor’s statement, which improperly commented on the defendant’s constitutional right not to testify, was reversible error, independent of any other error. The court only pointed to the other, unobjected-to, prosecutor’s statements as support for its decision to reverse the conviction based on the objected-to prosecutor’s statement.
Here, the one “misstatement of fact” which Gardner properly objected to at trial did not constitute reversible error, as it did in the Henderson case. It only constituted harmless error. Harmless error cannot turn into a reversible error due to the cumulative effect of unobjected-to prosecutor’s statements. As such, the other statements which Gardner cites on appeal, which were not properly objected to or preserved for appeal, will not be discussed herein. This issue fails.
III. EXCLUDING TESTIMONY
Della Zimmerman, a witness for the State, lived in the house to the west of Bobby Flynn’s house. Zimmerman testified that when she walked by the Flynn home about 6:15 a.m. on May 2, 1995, she smelled smoke. On cross-examination by defense counsel, Zimmerman stated that she often travelled by bus. She would usually get off of the bus at a stop which was 2Vz blocks from her home and walk home from there. The defense counsel asked her if any unusual incidents occurred shortly after the homicide as she walked home from the bus stop. Zimmerman answered “yes” to the question. At this time, the State requested a bench conference and made a relevancy objection. At the bench conference, the defense counsel stated that Zimmerman planned to testify that a male followed her as she walked home from the bus stop and said “repéat the killing.” The court allowed the defense to continue the cross-examination on this subject matter.
Once questioning resumed, Zimmerman stated that on a day after May 2, 1995, while she was riding the bus, she became involved in a conversation with a man whom she indicated she would not be able to identify. This man said that he was from Denver and was involved in law enforcement. This man got off of the bus at her stop and followed about 3 feet behind Zimmerman. When Zimmerman started to testify about what the man said, the State made a hearsay objection. The defense counsel responded that the statement was not offered to prove the truth of the matter stated but was offered only to show that the statement had been made. The trial court ruled that the statement qualified as hearsay and that it lacked an adequate foundation. The trial court refused to allow Zimmerman to testify regarding the “repeat the killing” statement that the man who followed her made.
On appeal, Gardner challenges the trial court’s ruling. Gardner alleges that Zimmerman’s testimony about the “repeat the killing” statement was not hearsay. In making this argument, Gardner cites to K.S.A. 60-460, which defines hearsay as “[ejvidence 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.” Gardner contends that he did not want to offer this statement to prove the truth of the matter stated. Rather, he only wanted to offer the statement to show that it had been made. As such, Gardner claims that the statement was not hearsay and should have been admissible. In support of his position, Gardner cites State v. Getz, 250 Kan. 560, Syl. ¶ 2, 830 P.2d 5 (1992), which provides:
“If an utterance previously made out of court is offered in evidence merely for the purpose of establishing what was then said, and not for the purpose of establishing the truth of the statement, the testimony is not hearsay. If relevant, it is admissible through the person who heard it.”
Further, Gardner asserts that the trial court erred in finding that there was not an adequate foundation for the statement and in refusing to admit the statement on this ground. Gardner concedes that Zimmerman could not recall the exact date on which the statement was made and indicated that she would not be able to identify the male who made the statement. However, Gardner points out that Zimmerman did indicate the statement was made following the homicide and occurred while she was walking home from the bus stop, which is close to her home and the Flynn home. Gardner contends that the time and location at which the statement was made were in temporal and geographic proximity to the homicide. According to Gardner, a sufficient relationship between the statement at issue and the Flynn homicide existed so as to create an adequate foundation for the statement. Thus, Gardner asserts that the statement was improperly excluded on this lack of foundation ground.
Gardner claims that the improper exclusion of the statement was prejudicial to him. As Gardner points out, the statement supported his theory of the defense that someone else committed the crime. Further, Gardner contends that the fact the man who made the statement was black was especially important. This is because both Gardner and Vernon Flynn are white, but the hair found in Flynn’s hand had racial inconsistencies with Flynn’s known hair samples, indicating that Flynn may have struggled with and been killed by a non-white person. Thus, Gardner claims that the exclusion of the statement was not harmless error. Since the statement was not hearsay and was relevant to his defense, Gardner claims that the trial court’s improper exclusion of the statement denied Gardner his Sixth Amendment right to present a complete defense.
The question of whether the trial court erred in excluding evidence is subject to an abuse of discretion standard of review. See State v. Vaughn, 254 Kan. at 204.
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Judicial discretion must thus be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.” State v. Stallings, 262 Kan. 721, Syl. ¶ 6.
Della Zimmerman’s statement about a man who said “repeat the killing” lacked an adequate foundation. The trial court did not abuse its discretion in so ruling. Zimmerman did not know who the man was; she did not say where he went after he made this comment and apparently stopped following her; she did not know on what date this conversation occurred; and she did not remember what he looked like and would not have been able to identify him. Since Zimmerman only heard part of what the man said, it is not even clear in what context he made this statement. Was the man talking about a movie he had just seen or the murder which occurred down the street? No one knows. Further, Gardner presented no witnesses who rode the bus with Zimmerman who might have seen her talking to this man and confirmed her testimony, at least in part. Zimmerman’s testimony regarding the man’s statement about “repeat the killing” was not supported by an adequate foundation. The trial court did not abuse its discretion by excluding Zimmerman’s testimony regarding the statement at issue. This issue fails.
Affirmed. | [
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Per Curiam:
This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Robert C. Woo-ton, of Kansas City, an attorney admitted to the practice of law in Kansas. The formal complaint filed against respondent alleges violations of MRPC 1.1 (1997 Kan. Ct. R. Annot. 268), 1.3 (1997 Kan. Ct. R. Annot. 276), 1.4 (1997 Kan. Ct. R. Annot. 282), 1.16(d) (1997 Kan. Ct. R. Annot. 324), 3.4 (1997 Kan. Ct. R. Annot. 339), 8.1 (1997 Kan. Ct. R. Annot. 363), and 8.4 (1997 Kan. Ct. R. Annot. 366) and Supreme Court Rule 207 (1997 Kan. Ct. R. Annot. 213).
A hearing before a panel of the Kansas Board for Discipline of Attorneys was held on September 16, 1997. Respondent did not appear in person or by counsel.
The complaint against respondent included four counts involving six different clients. In each instance, respondent accepted a retainer or payment on his fee and failed to represent the complainants as agreed. The panel found “the complainants to be particularly vulnerable in that their legal problems affected their ability to pay bills, drive to work and continue other everyday living activities. They were not familiar with the legal process, did not know many attorneys and had few options for other help.” The panel concluded:
“Respondent’s conduct violates the Model Rules of Professional Conduct (MRPC) Sections 1.1,1.3,1.4,1.16[(d)] and Supreme Court Rule 207. The Panel finds by clear and convincing evidence that Respondent violated MRPC 1.1,1.3, and 1.4 by failing to communicate with his clients regarding their cases, and by failing to diligently and competently represent them. The uncontroverted testi mony of John Johnson, Chassidy Johnson, Jamie McGee, Michael Johnson, Christaner HiE and William Wood, Jr. provides clear and convincing evidence that Respondent did not return phone caEs, was not accessible to cEents, did not inform clients of court dates or obtain court dates in a timely fashion, and otherwise did not proceed with their cases.
“The Panel also finds by clear and convincing evidence that Respondent violated MRPC 1.16(d) in representing Mr. Wood, when Respondent failed to turn over the file to the new attorney hired by Mr. Wood. As a result, new counsel expended more time, at substantial cost to Mr. Wood, in representing Mr. Wood in the probate proceeding. FinaEy, the Panel finds by clear and convincing evidence that Respondent violated Supreme Court Rule 207 by failing to cooperate in any manner with investigators and with the Disciplinary Administrator s office regarding the Complaint.”
The panel applied the ABA standards on aggravation and mitigation, and recommended that respondent be disbarred and ordered to return to complainants the money he received for retainers and fees. The Disciplinary Administrator recommended that respondent be disbarred.
Respondent filed no exceptions to the report and recommendations of the panel and failed to appear before this court.
We concur with the panel’s finding that there is clear and convincing evidence estabhshing the violations by respondent. Respondent has failed to carry out his responsibility as a lawyer to represent his clients. He has failed to cooperate with the Disciplinary Administrator or appear before the panel or this court to answer for his unethical conduct. A majority of this court, however, does not concur with the panel’s recommendation that respondent be disbarred. After examining the record, a majority of this court feels disbarment is too severe and finds that respondent should be indefinitely suspended from the practice of law in Kansas. Respondent should make full restitution by returning to the complainants the amount of money paid to him for a retainer or fee. For purposes of Supreme Court Rule 219(e) (1997 Kan. Ct. R. Annot. 245), the suspension should be effective as of the date of this order.
It Is Therefore Ordered that Robert C. Wooton be and he is hereby disciplined by indefinite suspension for his violations of the Model Rules of Professional Conduct.
It Is Further Ordered that Robert C. Wooton shall make full restitution to complainants prior to the filing of a petition pursuant to Rule 219 and that he comply with Rule 218 (1997 Kan. Ct. R. Annot. 235).
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to respondent. | [
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The opinion of the court delivered by
Six, J.:
This is a 42 U.S.C. § 1983 (1994) and Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., case. Plaintiffs are eight persons who, following arrest, experienced pretrial release procedures in the Third Judicial District (Shawnee County). Plaintiffs challenge the procedures. Defendants are the State, the Third Judicial District, and the 14 Third Judicial District judges as individuals.
The district court granted defendants’ motion to dismiss. See K.S.A. 60-212(b)(l) and (6). Plaintiffs object specifically to the “Own Recognizance-Cash Deposit Bond” (ORCD bond) authorized by Third Judicial District Court Rule (DCR) 3.311. DCR 3.311 was adopted under Supreme Court Administrative Order No. 96.
Plaintiffs’ petition asserts constitutional violations and seeks class certification, injunctive relief, and attorney fees under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 (1994). The certification references a class of persons “arrested in the Third Judicial District since 1985 who have been required to post bail to be eligible for pre-trial release.” Plaintiffs estimated that the class numbered 73,000 as of July 24, 1996, the date the petition was filed. The class grows by an average of 20 persons per day. Damages are sought against the State in the KTCA claim, for false imprisonment and conversion. Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from the Court of Appeals on our motion).
We consider two questions: Did the district court err in dismissing (a) the 42 U.S.C. § 1983 claims and (b) the KTCA damage claims?
The answer to both is “no.”
We affirm the district court.
FACTS
Statutory Pretrial Release and the ORCD Bond
Our Order No. 96 (issued January 17, 1995) gives all judicial districts discretion to adopt a pretrial release procedure similar to DCR 3.311. Paragraph 2 of Order No. 96 clearly says that any local rule dealing with pretrial release is “[i]n addition to the current statutory pretrial release system.”
The legislature has addressed pretrial release procedures. Under K.S.A. 22-2802(1), persons charged with crimes “shall . . . be ordered released pending . . . trial upon the execution of an appearance bond in an amount specified by the magistrate and sufficient to assure the appearance of such person before the magistrate when ordered and to assure the public safety.” Under paragraphs (3) and (4), 22-2802 contemplates three types of appearance bonds: own recognizance, surety, or a cash deposit instead of the bond. The bond is to have sufficient sureties, unless the magistrate decides that requiring sureties is not necessary to assure appearance. In lieu of a surety bond, cash may be deposited for the bond.
Under DCR 3.311, besides the statutory bonds described in 22-2802, the ORCD bond, a hybrid type of bond, is created. Paragraph 16 of DCR 3.311 provides that ORCD bond participation is on a voluntary basis and the statutory methods of providing bail are not to be limited or restricted. With the ORCD bond, the judge sets a bond amount (for example, $1,000). The accused is required to deposit 10 percent of that amount with the clerk of the district court ($100). The accused receives 90% of that deposit back upon completion of all obligations to the court — unless the accused has other financial obligations such as back child support or outstanding fines. If there are outstanding financial obligations, the $90 will be applied to those. Ten percent of the deposit ($10 in the example) will be kept as an administrative fee. Another key provision is Paragraph 15. This paragraph provides that when the court has specified the bond as cash or ORCD but the accused wants a professional surety bond, “the deputy clerk shall contact the judge authorizing the bond for modification of the bond.”
Plaintiffs’ Claims
The first amended petition sets forth the factual allegations surrounding the arrest, bail bonds, and release of each plaintiff. The case numbers of the individual criminal cases of plaintiffs are alleged, but the judge handling the particular case is not identified. In seven of the plaintiffs’ bond situations, the district court allegedly set cash or ORCD bonds for varying amounts, although the plaintiffs had requested surety bonds. Requests for surety bonds were denied, either by the judge or because the deputy clerk allegedly refused to contact the judge to make the modification. In one situation, the plaintiff had requested a cash bond, but a surety or ORCD bond was specified. One of the plaintiffs (Hendricks) was released only after the district attorney declined to prosecute. Plaintiffs also complain that DCR 3.311 allows the district court to apply an accused’s cash deposit to other obligations unrelated to the accused’s criminal case. They also contend that an unauthorized administrative fee is charged with ORCD bonds. Plaintiffs assert that the practices allowed under DCR 3.311 and as applied by the defendant judges are not authorized by K.S.A. 22-2802.
The petition alleges that the defendants, acting under color of state law, violated plaintiffs’ federal civil rights of due process, equal protection, and freedom from excessive bail, and under 42 U.S.C. § 1983 through the pretrial release procedure. Plaintiffs also claim defendants have violated § 9 of the Kansas Constitution Bill of Rights. The petition sets out a list of specific defects in the pretrial release procedure. Plaintiffs claim their releases were delayed and they were unlawfully forced to forfeit money deposited with the court during the bonding-out process. These allegations are advanced in support of KTCA claims for false imprisonment and conversion. Plaintiffs seek prospective injunctive relief prohibiting enforcement of the pretrial release procedures, costs and attorneys fees under 42 U.S.C. § 1988, monetary damages for the class, and restitution.
The petition is not separated into different counts. All claims are alleged together against all defendants. The petition does not identify the current status of plaintiffs’ criminal cases. It also does not plead that any plaintiffs sought relief regarding their bonds in their criminal cases, either through appeal or by writ of habeas corpus.
Defendants jointly moved to dismiss the petition under K.S.A. 60-212(b)(l) (subject matter jurisdiction) and (6) (failure to state a claim). The parties fully briefed the issues, which were heard before the Honorable Stephen D. Hill, who was assigned from another judicial district.
Plaintiffs presented several evidentiary witnesses, including court services personnel, a criminal defense attorney, a legal assistant from the public defender’s office, jail personnel, and three of the plaintiffs. The testimony addressed the operation of the pretrial release program as applied to the three plaintiffs who testified.
The District Court’s Ruling
Judge Hill decided the Third Judicial District was not a legal entity and dismissed all claims against the district, under K.S.A. 60-212(b)(1). All 42 U.S.C. § 1983 claims against the State were dismissed for failure to state a claim, K.S.A. 60-212(b)(6) (The State was not a “person” against whom relief could be sought, relying on Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 105 L. Ed. 2d 45, 109 S. Ct. 2304 [1989].). On appeal, plaintiffs have not briefed the 42 U.S.C. § 1983 claims against either the judicial district or the State. Plaintiffs’ counsel acknowledged at oral argument that these claims were abandoned.
In determining that the district court lacked subject matter jurisdiction to grant 42 U.S.C. § 1983 equitable relief against the judges, Judge Hill relied on the following two reasons:
(1) The noninterference doctrine, as stated in Schaeffer v. Schaeffer, 175 Kan. 629, 633, 266 P.2d 282 (1954), applied:
“The general rule is that when a court of competent jurisdiction acquires jurisdiction of the subject matter and of the parties, its jurisdiction continues as to all matters therein involved until the issues are finally disposed of, and no court of co-ordinate jurisdiction should interfere with its action.”
(2) Plaintiffs had other and more appropriate forums in which to seek their remedies, i.e., appellate review of their criminal cases or habeas corpus relief. Judge Hill also referred to Mounkes v. Conklin, 922 F. Supp. 1501 (D. Kan. 1996). In Mounkes, apparently filed by at least one or more of the plaintiffs here, similar 42 U.S.C. § 1983 claims were brought against the defendant judges. (The members of this court were also defendants in Mounkes.) The Mounkes court dismissed the complaint, based on the Rooker-Feldman doctrine as to each separate bail bond decision. 922 F. Supp. at 1510; see D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 68 L. Ed. 362, 44 S. Ct. 149 (1923). The remaining allegations involving general constitutional attacks on Order No. 96 and DCR 3.311 were dismissed under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 56, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).
Judge Hill denied a temporary injunction here, saying: “The intended and unintended results of granting a temporary injunction in this case amount to judicial interference on a massive scale.” Plaintiffs did not brief the temporary injunction issue, and it is abandoned. See Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 (1992).
Judge Hill dismissed the KTCA claims, concluding that the actions complained of were discretionary judicial functions and that K.S.A. 75-6104(e) (the discretionary function exception) applied. (We note the citation for the judicial function exception is K.S.A. 75-6104[b].)
DISCUSSION
Our initial inquiry concerns the district court’s dismissal of the 42 U.S.C. § 1983 claims for injunctive relief and leads us to examine subject matter jurisdiction. See K.S.A. 60-212(b)(l).
In reviewing defendants’ successful motion to dismiss, we are required to assume that the facts alleged by the plaintiffs are true. We must also decide whether the pleaded facts and inferences state a claim, not only on the theories that were espoused by the plaintiffs, but also on any possible theory we can divine. Kansans for Fair Taxation, Inc. v. Miller, 20 Kan. App. 2d 470, Syl. ¶ 1, 889 P.2d 154, rev. denied 257 Kan. 1092 (1995). We note that plaintiffs do not set out the standard of review as required by our Rule 6.02(e) (1997 Kan. Ct. R. Annot. 33).
Noninterference or Comity Doctrine
Plaintiffs argue that the Schaeffer noninterference doctrine, 175 Kan. at 633, relied on by the district court, is not applicable.
Schaeffer involved competing divorce actions, each filed in different counties a few days apart. The comity doctrine has been applied numerous times in the context of competing domestic relations cases. See, e.g., Perrenoud v. Perrenoud, 206 Kan. 559, 573, 480 P.2d 749 (1971); Boyce v. Boyce, 13 Kan. App. 2d 585, 776 P.2d 1204, rev. denied 245 Kan. 782 (1989) (common-law action for child support dismissed on comity principles, in view of prior divorce action in Nebraska).
We have an interesting question here: Can a district judge prospectively enjoin the other judges in the district from enforcing, in their criminal cases, a local judicial district rule which is alleged to violate federal civil rights?
We characterize Judge Hill’s position as that of an appellate court reviewing decisions made by the Shawnee County district judges. Would not Judge Hill be required to review the eight individual case files to determine how the bad bond procedure was applied in each case? Would the judges be deposed by the Plaintiffs? Would not a transcript of the proceedings in each case be required for a realistic review? We believe there are valid reasons why subject matter jurisdiction does not exist here. However, the comity doctrine does not seem well suited to apply in the context of this lawsuit. The strongest reason against its application here is the fact that 42 U.S.C. § 1983 claims are involved. Concern for abridgment of a federal civil rights claim before it is even considered on the merits would seem to override the deferential comity doctrine. We move on to our reasons for affirming the district court’s denial of injunctive relief.
The Kansas Court of Appeals has jurisdiction “to correct, modify, vacate or reverse any act, order or judgment of a district court to assure that any such act, order or judgment is just, legal and free of abuse.” (Emphasis added.) K.S.A. 60-2101. There exists no statutory authority for a district judge to sit in judgment of a coequal district court.
Plaintiffs cite Pulliam v. Allen, 466 U.S. 522, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984), as directly on point. We disagree. In Pulliam, a magistrate judge imposed bail on two persons arrested for nonjailable misdemeanor offenses (use of abusive and insulting language and drunk in public). Both were incarcerated for a number of days for failure to make bond. They filed § 1983 actions in federal district court against the magistrate. The requested relief was a prospective injunction against the magistrate’s practice of imposing bail on persons arrested for nonjailable offenses. The Pulliam plaintiffs obtained the injunction along with costs and attorney fees.
Concluding that judicial immunity did not bar prospective injunctive relief, the Pulliam Court said:
“In so concluding, we express no opinion as to the propriety of the injunctive relief awarded in this case. Petitioner did not appeal the award of injunctive relief against her. The Court of Appeals therefore had no opportunity to consider whether respondents had an adequate remedy at law, rendering equitable relief inappropriate, or whether the order itself should have been more narrowly tailored. On the record before us and without the benefit of the Court of Appeals’ assessment, we are unwilling to speculate about these possibilities.” 466 U.S. at 542-43. (Emphasis added.)
Pulliam is not persuasive authority here for either equity jurisdiction or plaintiffs’ claims for injunctive relief.
Judge Hill did not rely solely upon the noninterference doctrine in dismissing plaintiffs’ § 1983 claims. He also held that plaintiffs had other legal remedies available, i.e., appellate review of their criminal cases or habeas corpus relief. We emphasize the cautionary teaching in Pulliam:
“For the most part, injunctive relief against a judge raises concerns different from those addressed by the protection of judges from damages awards. The limitations already imposed by the requirements for obtaining equitable relief against any defendant — a showing of an inadequate remedy at law and of a serious risk of irreparable harm [citation omitted] — severely curtail the risk that judges will be harassed and their independence compromised by the threat of having to defend themselves against suits by disgruntled litigants.” 466 U.S. at 537-38.
“Injunction is an equitable remedy and its grant or denial in each case is governed by the principles of equity.’’ U.S.D. No. 503 v. McKinney, 236 Kan. 224, Syl. ¶ 1, 689 P.2d 860 (1984).
“In considering the right to injunctive relief in a suit under 42 USC § 1983, the court applies the ordinary principles of equiiy, determining whether the plaintiff has shown irreparable damage and the absence of a plain, adequate, and complete remedy at law.” 15 Am. Jur. 2d Civil Rights § 275 (citing Abernathy v. Patterson, 295 F.2d 452, 456 [5th Cir. 1961], cert. denied 368 U.S. 986 [1962]) (dismissal of suit for injunctive relief under § 1983 and other federal statutes affirmed; plaintiffs failed to show adequate grounds for injunctive relief).
What legal remedies were available to plaintiffs? In State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), we observed that appellate review is available to. contest bail. Ruebke was convicted of three counts of first-degree murder and three counts of aggravated kidnapping. Ruebke asserted that the judge’s failure to reduce his bail from $100,000 impaired his defense. He had not filed a writ of habeas corpus and was later released on bail before trial. Deciding that bail was not excessive, we said: ‘When a defendant alleges on appeal error in the fixing of bail, but fails to file a writ of habeas corpus and does not claim his defense was hampered by his custody status, the matter of pre trial release is moot.” 240 Kan. at 498; see State v. Foy, 224 Kan. 558, 562, 582 P.2d 281 (1978); State v. Dunnan, 223 Kan. 428, 430, 573 P.2d 1068 (1978) (excessive bail claims denied on appeal in both cases; no writs of habeas corpus filed). A criminal defendant must promptly pursue habeas corpus remedies in order to preserve for review on appeal questions concerning bail.
The writ of habeas corpus provides a mechanism under which a criminal defendant can seek relief from confinement under an erroneous bond, or even relief while released on bail. See K.S.A. 1997 Supp. 60-1501, the statutory habeas corpus proceeding; see also In re Habeas Corpus Petition of Mason, 245 Kan. 111, 115, 775 P.2d 179 (1989) (“A defendant who has been released on bond nevertheless remains in custody for purposes of a writ of habeas corpus”; writ of habeas corpus raising double jeopardy issue following mistrial granted and defendant discharged).
We acknowledge that neither appellate review nor a writ of habeas corpus would provide the opportunity to seek prospective injunctive relief against enforcement of the DCR 3.311 pretrial release program sought by plaintiffs in their § 1983 claims. Habeas corpus provides only the opportunity to correct bail errors in a specific criminal case, if not already moot. The plaintiffs are no longer confined and their criminal cases appear to be over at this point (although the petition does not show the current status). The urgency of prospective injunctive relief is questionable.
. Typically, a defendant in pretrial confinement with a bond imposed has two immediate options: first, file a motion to reduce or otherwise modify the bond; second, file a writ of habeas corpus. See Dunnan, 223 Kan. at 430 (murder conviction reversed on other grounds), in which Dunnan contended on appeal that his $250,000 bail was excessive, violating the Eighth Amendment to the United States Constitution, § 9 of the Kansas Constitution Bill of Rights, and K.S.A. 22-2801. In deciding that the magistrate had not abused his discretion in setting bail, we observed:
“The bond fixed was indeed high, but the offense was most serious. We find no written motion to reduce bond, and if an oral motion was made, we find no record of it. Also, we find no indication that the defendant filed an application for writ of habeas corpus, an appropriate, efficacious, and always available method for seeking release from unlawful custody. [Citation omitted.] We hasten to say that such an application should not be made until a motion to reduce bond has been heard and ruled upon by the trial court.” 223 Kan. at 430.
Defendants rely on Mounkes. Plaintiffs’ counsel represented at oral argument that Mounkes is the only plaintiff here who was also a plaintiff in the federal lawsuit. However the record reflects the State’s observation that Dozier and Haynes, plaintiffs here, were also plaintiffs in Mounkes. In Mounkes, defendants sought dismissal of the complaint under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The description in the opinion of the allegations and relief sought is similar to the § 1983 claims asserted here. In reviewing the complaint Mounkes observed:
“What the plaintiffs do not allege is also important to note. They do not mention whether they ever sought or requested modification of the bonds set. Nor do they say whether they ever challenged the constitutionality of the administrative order and local rule in the original proceedings or in a separate habeas corpus action. Finally, the plaintiffs do not allege the particular status or posture of the different criminal cases.” 922 F. Supp. at 1507.
The Mounkes observations apply here, although the plaintiffs claim they made bond modification requests in their criminal cases, which were denied. The petition here alleges that plaintiffs’ Smith and Dixon requested bond modification. However, there are no allegations that any plaintiff initiated habeas corpus proceedings or ever challenged their bonds as illegal or unconstitutional in their criminal cases. At oral argument in the district court, plaintiffs’ counsel advised Judge Hill of the current disposition (as of November 14, 1996) of a few of the cases. None were on appeal. Smith was on probation and Dixon had entered a plea. None of the plaintiffs were incarcerated.
Judge Hill did not list failure to show irreparable harm as a reason why equity jurisdiction did not exist. However, if none of the plaintiffs were incarcerated, the obvious question arises, where was the irreparable harm? If the only remaining issues involve damages, then equitable relief was not appropriate.
Generally, federal courts are not to enjoin pending state court criminal proceedings, except in narrow circumstances. Mounkes, 922 F. Supp. at 1511. Although Mounkes keyed on federal juris dictional and abstention grounds, the question of whether plaintiffs’ § 1983 claims were appropriate for equitable relief was addressed:
“Considering the equitable nature of the plaintiffs’ claims, the pending criminal proceedings against them, and the state procedural avenues available to them, the plaintiffs have not demonstrated the extraordinary circumstances necessary for federal equitable intervention.” 922 F. Supp. at 1513.
Judge Hill voiced concern that granting the injunctive relief requested would put him in the position of supervising all pretrial release procedures in the district court of Shawnee County and amount to “judicial interference on a massive scale.” We agree. This concern also weighs heavily against jurisdiction for equitable relief.
We affirm the district court’s dismissal of plaintiffs’ 42 U.S.C. § 1983 claims for injunctive relief. Plaintiffs have failed to allege grounds for equitable jurisdiction. They have failed to show either lack of adequate legal remedies or irreparable harm.
The KTCA
Judge Hill’s order dismissed all damage claims against the judges under K.S.A. 60-212(b)(l) and (6). The plaintiffs only sought damages against the State for their KTCA claims. Judge Hill’s dismissal has the effect of disposing of the KTCA claims against the State. None were pending against the judges individually.
The KTCA makes liability the rule and immunity the exception. The burden is on the State to establish its entitlement to any of the exceptions set forth in K.S.A. 75-6104. If the State cannot meet this burden, then the general rule of liability set forth in K.S.A. 75-6103 governs. C.J.W. v. State, 253 Kan. 1, 13, 853 P.2d 4 (1993).
K.S.A. 75-6103 provides:
“(a) Subject to the limitations of this act, each governmental entity shall be hable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be hable under the laws of this state.”
The facts, developed from the allegations in plaintiffs’ petition, form an awkward setting for a KTCA claim. We cannot visualize a “private person” taking the bench in a criminal court and exercising discretion in setting pretrial release bonds for an accused.
Judge Hill concluded that discretionary functions are excluded under the KTCA. Relying on 75-6104(e) and citing Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), Judge Hill observed that “all of the actions of the judges, complained about by the plaintiffs, that is, the setting of bond, modifying or refusing to modify orders, making rules, are alljudicial functions left to the discretion of the judge who has competent jurisdiction.” (Emphasis added.) We said in Beck, in discussing a judge’s discretion to ignore or deny parole or probation: “We do not believe that the legislature, in enacting the Kansas Tort Claims Act, intended to subject [a] . . . judge, to litigation in order to determine whether the . . . judge turned every tap and jumped through every hoop in arriving at a decision . . . .” 241 Kan. at 36. K.S.A. 75-6104(b) and (e) provide:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
(b) judicial function;
(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
We reviewed the 75-6104(b) “judicial function” exception in Cook v. City of Topeka, 232 Kan. 334, 337, 654 P.2d 953 (1982). We said: “Where ‘judicial function’ is being distinguished from ‘ministerial act’ the emphasis shifts to discretionary acts versus performance of some duty involving no discretion.” A municipal court clerk’s failure to recall a bench warrant was held to be ministerial and nondiscretionary, not a “judicial function.” In Cook, we defined judicial function as involving “the exercise of judgment, discretion, discernment, or discrimination.” 232 Kan. at 337. The acts complained of here were performed by judges carrying out their judicial responsibilities and thus are exempt under 75-6104(b). See also Akbarnia v. Deming, 845 F. Supp. 788, 790 (D. Kan. 1994), aff’d 49 F.3d 1482 (10th Cir. 1995) (judicial function exception applied to immunize psychologists who performed court-ordered evaluations in connection with divorce proceedings, against professional negligence claims of mother and others).
Plaintiffs argue that the discretionary function exception should not apply because the actions of the deputy court clerks in routinely denying bail and pretrial release were ministerial in nature, citing Cook, 232 Kan. at 337. However, plaintiffs named the judges as defendants, not the deputy court clerks. The petition fails to identify the particular judge taking action concerning the pretrial release of any of the eight plaintiffs. Only eight district court orders are at issue. All 14 judges are named as defendants without any clue as to which judges entered the objectionable orders.
Plaintiffs argue that § 9 of the Kansas Constitution Bill of Rights and K.S.A. 22-2802(1) provide mandatory guidelines that must be followed by all judges with respect to pretrial release of accused persons.
Section 9 of the Kansas Constitution Bill of Rights provides: “All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” The language “shall be bailable by sufficient sureties” leaves open to discretion at least two key determinations: What amount of bail is sufficient, and what is a sufficient surety?
Plaintiffs agree that judges have discretion in fixing the amount of bail. They also agree that judges have total discretion to impose conditions reasonably necessary to assure appearance and provide for public safety, as set forth in K.S.A. 22-2802(1). Plaintiffs contend, however, that judges do not have discretion to deny pretrial release and admission to bail by not permitting either a surety bond or cash in lieu of bond when requested. We observe that in none of the cases described in the petition were Plaintiffs denied admission to bail. Plaintiffs’ complaints are that the defendant judges allegedly denied them the specific type of bail they requested (either surety or cash), forcing them to participate in the ORCD bond program and delaying their releases. The gist of plaintiffs’ com plaint lies in the manner in which the defendant judges complied with their responsibility to set bail.
Plaintiffs’ KTCA claims are conclusory. Most likely, many of the 14 judges named as defendants had no involvement in plaintiffs’ eight criminal cases. When plaintiffs allege they requested surety bonds or that they could have obtained surety bonds, there are no allegations to show that the sureties proposed to be used were “sufficient,” within the meaning of K.S.A. 22-2802(3). If plaintiffs were denied surety bonds because the proposed sureties were not, in the judge’s view, sufficient, then the judge would have been acting within statutorily provided discretion in denying the requests for surety bonds. In only one of the criminal cases, that of plaintiff Cassie Benoit, was a surety bond specified and a request to post a cash deposit for the same amount allegedly denied. However, the deputy clerk of the court allegedly denied the request, not the judge. The petition goes on to allege that 2 days after the request was denied, Benoit’s bond was changed to an own recognizance bond, and she was released. Evidently, the judge must have granted her request to have her bond changed from surety to own recognizance. She was not forced to obtain an ORCD bond. The statutes do not place a time limit on when an incarcerated accused’s requests for bond modification must be heard.
K.S.A. 22-2802(7) provides for bond condition modification requests. Such requests are to be heard “without unnecessary delay.” Instantaneous action on such requests is not mandated. Presumably, the requests will be acted upon as soon as possible.
We have referenced the judicial function exception, 75-6104(b). The term “judicial function” was used by Judge Hill in his dismissal order. In a pre-KTCA case, the Court of Appeals stated the common-law doctrine of judicial immunity as follows: “[Jjudges are immune for damages for acts committed within their judicial jurisdiction.” Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 477, 620 P.2d 837 (1980) (citing Pierson v. Ray, 386 U.S. 547, 554, 18 L. Ed. 2d 288, 87 S. Ct. 1213 [1967]; Stump v. Sparkman, 435 U.S. 349, 355-56, 55 L. Ed. 2d 331, 98 S. Ct. 1099 [1978]).
We reason that the specific focus of the district court on “judicial function” guides us to the application of K.S.A. 75-6104(b) rather than 75-6104(e) in resolving this issue. As the district court observed, the acts complained of “are all judicial functions left to the discretion of the judge who has competent jurisdiction.” We have said that a district court’s reason for its decision is immaterial if the ruling was correct for any reason. Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, Syl. ¶ 3, 863 P.2d 364 (1993).
The acts of the defendant judges forming the basis for plaintiffs’ complaints are judicial functions. The State is exempt from liability under K.S.A. 75-6104(b).
In concluding, we emphasize the language used in paragraph 16 of the example of a pretrial release procedure that was attached to our Administrative Order No. 96. Paragraph 16 states:
“This rule shall not limit or restrict the right of any person to seek or obtain pretrial release under other statutory methods of admitting accused persons to bail or the authority of a judge of the district court to determine bail. The participation of an accused, person in this program shall be on a voluntary basis." (Emphasis added.)
Paragraph 16 means just what it says. Voluntary participation is a key element in Order No. 96. Paragraph 16 of the Third Judicial District’s Rule 3.311 is identical.
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The opinion of the court was delivered by
Six, J.:
This case considers whether the crime of attempted aggravated assault existed in 1990. The issue before the district court was limited to sentencing. The Court of Appeals expanded the inquiry to include whether the defendant could plead to a nonexistent crime. We alter the issue for review by examining State v. Martinez, 20 Kan. App. 2d 824, 835, 893 P.2d 267 (1995), the case that led the Court of Appeals to its expanded inquiry.
Spencer appealed the dismissal of his K.S.A. 60-1507 motion attacking his consecutive sentencing. He also argued for the first time that his attempted aggravated assault conviction should be vacated because he had pled to a nonexistent crime. In making this argument, the defendant relied on Martinez.
The Court of Appeals, in affirming Spencer’s conviction, distinguished Martinez, vacated the consecutive sentencing, and remanded for resentencing. We granted Spencer’s petition for review on the conviction issue, and our jurisdiction is under K.S.A. 20-3018(b).
After oral argument, we raised the question of whether the holding of Martinez, that the crime of attempted aggravated assault did not exist, was a correct statement of the law. The parties have filed supplemental briefs.
Although our reasoning differs, we agree with the result reached by the Court of Appeals. Spencer’s conviction of attempted aggravated assault is affirmed. The case is remanded for resentencing. Our affirmance is based on the existence, in 1990, of the crime of attempted aggravated assault. We disapprove of the contrary holding in Martinez.
FACTS
We quote from the Court of Appeals opinion:
“In 1990, Spencer was charged with one count of aggravated batteiy, a class C felony. Pursuant to a plea agreement, the State amended the charge to attempted aggravated assault, a class E felony. Spencer pled no contest to the amended charge and was sentenced to a term of 1 to 2 years. He was then grantedprobation for a period of 1 year.
“During the next 3 years, Spencer was the subject of several motions to revoke probation. It appears probation was extended, and in January 1994, he entered into a community corrections supervision agreement.
“In December 1994, the district court revoked Spencer’s probation because he had violated its conditions and had been convicted of five counts of forgery in another case. The court sentenced Spencer to concurrent terms of 18 months on each of the five forgery counts. The court found that under the sentencing guidelines, Spencer’s sentence for the attempted aggravated assault would be 8 months. The court ruled: ‘The sentences have to be served consecutively.’
“Spencer filed a 60-1507 petition challenging the court’s imposition of consecutive sentences. The district court dismissed the motion for lack of merit.” 24 Kan. App. 2d at 125-26.
The State did not file a brief with the Court of Appeals.
DISCUSSION
The Court of Appeals acknowledged and distinguished Martinez. Martinez concluded that “there could not be a valid conviction for attempted assault in Kansas.” 20 Kan. App. 2d at 833. The Court of Appeals said: “The Martinez ruling did not speak to a voluntary plea entered by a defendant who was taking advantage of a beneficial plea agreement. Martinez pled not guilty and was convicted over his objection to the charge. Martinez is not controlling in the instant case.” 24 Kan. App. 2d at 127. The Court of Appeals affirmed Spencer’s conviction but held that his sentencing contention had merit. The consecutive sentencing was vacated, and the case was remanded for resentencing. The State did not seek review on the sentencing issue.
We next consider the crime of attempted aggravated assault. Our discussion is limited to the pertinent statutes in effect at the time the crimes for which Spencer and Martinez were convicted occurred. If the crime of attempted aggravated assault existed in 1990, Spencer did not plead to a nonexistent crime and this appeal is resolved. The inquiry leads us to a discussion of Martinez.
Spencer’s supplemental brief essentially follows the reasoning of Martinez. The Martinez court said: “It should be apparent that there is no conceptual or philosophical difficulty preventing a conviction for attempted assault arising out of an intentional threat to do bodily harm.” 20 Kan. App. 2d at 833. However, Spencer contends that a threat to do bodily harm is not really a threat unless there is apprehension of bodily harm. This is a circular argument. We agree there cannot be an assault without apprehension by the victim of bodily harm. However, the question is whether there can be a crime of attempted aggravated assault by threat when there is no apprehension of bodily harm. Spencer relies on State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996); State v. Bishop, 240 Kan. 647, 732 P.2d 765 (1987); State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974); Zapata v. State, 14 Kan. App. 2d 94, 782 P.2d 1251 (1989); State v. Daniels, 12 Kan. App. 2d 479, 753 P.2d 300 (1987); In re Geisler, 4 Kan. App. 2d 684, 610 P.2d 640 (1980); State v. Urban, 3 Kan. App. 2d 367, 595 P.2d 352 (1979); and State v. Duncan, 3 Kan. App. 2d 271, Syl. ¶ 3, 593 P.2d 427 (1979). These cases concern the necessary elements for the crime of assault. The cases illustrate the rule that there can be no crime of assault without apprehension by the victim of bodily harm. They do not shed light on whether the crime of attempted aggravated assault exists.
The State reasons that when a defendant makes an overt act toward perpetration of a crime and intends to commit that crime but fails, or is prevented or intercepted in executing the crime, it is an attempt. See K.S.A. 21-3301. When a defendant does everything to perpetrate an assault, but the element of immediate apprehension of bodily harm is all that is missing, why is that not the crime of attempted assault? The State asks, why should not an act done with the intent to create immediate bodily harm be punishable conduct, regardless of whether that conduct achieves the result of creating such apprehension?
Spencer’s crime occurred in November 1990. Martinez’ crime occurred in May 1993. In 1990, K.S.A. 21-3408 (Ensley 1988) defined assault as: “An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” In 1992, K.S.A. 21-3408 was amended:
“As assault is aa intentional threat or attempt te 4© bodily han» te another eeapled wife apparent ability «id resulting i» immediate apprehension of bodily han»,- Ne bodily contact is necessary. Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.
“Assault is a class C misdemeanor.” L. 1992, ch. 298, § 9.
K.S.A. 21-3410 (Ensley 1988), the aggravated assault statute, was also amended in 1992. L. 1992, ch. 298, § 10. The effective date for the 1992 amendments to 21-3408 and 21-3410 was July 1,1993. Spencer and Martinez were convicted under the same statutes.
The 1992 amendments to 21-3408 and 21-3410 are not in issue here.
Martinez acknowledges:
“The [State v. Patchett, 229 Kan. 163, 621 P.2d 1011 (1981),] court stated: ‘There is authority which recognizes the existence of attempted aggravated assault. State v. Clanton, 219 Kan. 531, 533-34, 548 P.2d 768 (1976); Perkins on Criminal Law, Ch. 2, § 2 B3 (2nd ed. 1969); Annot., 79 A.L.R.2d 597. However, we do not reach the question in this ease.’ 229 Kan. at 165.” 20 Kan. App. 2d at 831.
Cases supporting nonexistence of the crime of attempted aggravated assault take the “there can be no crime of attempt to commit an attempt” approach. Cases supporting existence usually involve fact situations in which the defendant’s attempt to commit a battery was stopped before it reached the point of placing the intended victim in fear of immediate apprehension of bodily harm. See An-not., Attempt to commit Assault as Criminal Offense, 79 A.L.R.2d 597, §§ 2, 3; 4 Wharton’s Criminal Law § 693, pp. 585-86 (15th ed. 1996); 2 LaFave and Scott, Substantive Criminal Law § 6.2, p. 21 n. 40 (1986).
In Spencer’s situation, the complaint alleged that he committed aggravated battery by striking the victim with a pool cue. A scenario could be visualized as an attempted aggravated assault had Spencer swung the pool cue at the victim, but been brought under control by others before getting close enough to the victim to cause apprehension of bodily harm.
The Martinez panel acknowledged further:
“The offense of assault, however, is no longer defined strictly as an attempted battery. . . .
“According to K.S.A. 21-3408, an assault can result from either an intentional threat or an attempt to do bodily harm (an attempted battery). Thus, defendant’s argument that an attempt to attempt a crime is not a crime at all is only applicable to those cases in which the assault arose out of an attempt to do bodily harm. In such a case, a defendant cannot be convicted of an attempt to attempt to do bodily harm.
“Defendant’s argument, however, leaves intact the possibility of an attempted assault arising out of intentional threat to do bodily harm.” 20 Kan. App. 2d at 832-33.
We agree.
The statute at issue here and in Martinez provided: “An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessaiy.” K.S.A. 21-3408 (Ensley 1988).
As the cases cited in Annot., 79 A.L.R.2d 597, § 3 and the authorities cited in Martinez stated, an intentional threat that for some reason does not achieve the result of placing the victim in immediate apprehension of bodily harm could still, in theory, be an attempted assault and punishable criminal conduct.
We hold that Spencer did not plead to a nonexistent crime. His conviction is affirmed. Language in Martinez to the contrary is disapproved.
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The opinion of the court was delivered by
Larson, J.:
This appeal raises a jurisdiction issue and the ques-, tion of whether an involuntary transfer provision is mandatorily negotiable under the Professional Negotiations Act (Negotiations Act), K.S.A. 72-5413 et seq.
We first set forth sufficient facts to show how the issues have come before us.
The Junction City Education Association (Education Association) and the Board of Education of the Unified School District No. 475, Geary County, Kansas (Board), entered into negotiations for an agreement governing the terms and conditions for professional services for the 1996-97 school year.
A negotiated agreement for the 1995-96 school year contained the following provision:
“ARTICLE XIII — INVOLUNTARY TRANSFERS
“A. When it is determined by the personnel office that a teaching assignment must be changed within five (5) days of the first contract day of any school year, that teacher is eligible to receive additional compensation [of] $150. A different teaching assignment is defined as a change from one grade level or specialty to another, or the change from one classroom to another within the same school building.
“B. If such change requires a move from one building to another, that teacher is eligible to receive additional compensation of $300. A move is defined as a change from one grade level to another or to the same grade level in another building.”
Negotiations regarding the 1996-97 agreement reached an impasse, and the parties jointly implemented impasse procedures pursuant to K.S.A. 72-5426 with the Secretary of the Department of Human Resources (Secretary) to resolve their disputes. One of the disputed issues was whether Article XIII from the 1995-96 agreement was mandatorily negotiable under the Negotiations Act.
Mediation was unsuccessful. A factfinder was appointed, and the factfinding hearing was imminent on October 17, 1996, when the Education Association filed a declaratory judgment action seeking a determination in the Geary County District Court that the involuntary transfer proposal was mandatorily negotiable. The Education Association requested an injunction requiring the Board to negotiate the terms of the involuntary transfer proposal.
The Education Association’s petition asked that a summary hearing commence within 5 days. The Board moved to dismiss, alleging the district court lacked subject matter jurisdiction due to the failure of the Education Association to exhaust administrative remedies. The Board also filed a memorandum on the merits in opposition to the petition. A nonevidentiary hearing was held on November 1, 1996.
At the conclusion of the hearing, the court ruled it had jurisdiction pursuant to K.S.A. 60-1701, as well as Chee-Craw Teachers Ass'n v. U.S.D. No. 247, 225 Kan. 561, 566-68, 593 P.2d 406 (1979). The court further ruled that a provision for involuntary transfers is not a mandatorily negotiable item, nor is compensation for such transfers. The Education Association appeals the denial of its requested relief.
The Board has pointed out in its brief that the parties proceeded to factfinding and ultimately entered into a negotiated agreement for the 1996-97 school year which did not contain the involuntary transfer proposal.
Although it may be argued that by ultimately entering into a negotiated agreement for the 1996-97 school year the parties have rendered this appeal moot, see Shanks v. Nelson, 258 Kan. 688, 907 P.2d 882 (1995), this case appears to warrant an exception. In Allenbrand v. Contractor, 253 Kan. 315, Syl. ¶ 3, 855 P.2d 926 (1993), we recognized an exception to the general rule regarding appellate review of moot issues:
“An exception to the general rule regarding whether a case is moot exists if the case involves a question of public interest. Appellate courts are inclined to retain an appeal on this basis if the question involves one that is likely to arise frequently in the future unless it is settled by a court of last resort.”
An example of the application of this exception is Stauffer Communications, Inc. v. Mitchell, 246 Kan. 492, 789 P.2d 1153 (1990), where the hearings a reporter sought to attend had ended by the time the case was considered on appeal. The parties and the court agreed the situation would recur and continue to evade appellate review. Thus, we refused to dismiss the appeal as moot.
Questions involving whether an item is mandatorily negotiable under the Act and the proper procedure for raising the matter are issues likely to recur throughout the state and evade review. We elect to answer the jurisdictional and procedural issue raised for the assistance of school boards and negotiating units in the future. See Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973).
The district court held, without analysis, that it had subject matter jurisdiction of this case pursuant to K.S.A. 60-1701 and Chee-Craw Teachers Ass’n v. U.S.D. No. 247, 225 Kan. at 566-68. Amendments to the Negotiations Act subsequent to the date of and in specific response to the Chee-Craw decision renders this conclusion suspect.
A question regarding jurisdiction is an issue of law over which we have unlimited review. Resolving this question involves statutory interpretation, which is also a legal issue. It is our function to interpret a statute to give it the intended effect. U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 524, 802 P.2d 516 (1990).
Chee-Craw held the Negotiations Act was designed “to statutorily define the scope of mandatory negotiations and to provide the impasse procedure as a tool to assist in reaching a negotiated agreement.” 225 Kan. at 566. This court pointed out that K.S.A. 1978 Supp. 72-5426(a) required a district court to hear impasse petitions within 5 working days and that “[a] speedy resolution of the impasse is the goal of the legislation.” 225 Kan. at 567. We then declared:
“This all goes for naught if the basic issues as to what must be negotiated are not determined prior to declaration of impasse. . . . Inasmuch as negotiated agreements are ‘package deals,’ it is often difficult or impossible to make progress in negotiations while key proposals are involved in litigation as to whether they are mandatorily negotiable.
“In order to effectuate the intent of the Collective Negotiations Law it is imperative to break the present bottleneck in collective negotiations. To accomplish this, wherever possible, potential areas of dispute as to whether an item is mandatorily negotiable must be eliminated. Expeditious judicial determination of any remaining areas of dispute must be accomplished. We therefore establish the following rules of law and procedure:
“1. In actions involving disputes as to whether proposals are mandatorily negotiable, the district court shall determine the matter in the same manner provided by the impasse procedure in K.S.A. 1978 Supp. 72-5426, which provides for a summary hearing commenced within five days, etc.
“2. The district court shall, in its determination, decide such negotiability questions as a matter of law. Ordinarily, evidence admitted should be only the proposals themselves, but the district judge may, in his discretion, permit such other evidence as will assist him in understanding the nature and effect of the proposal. The court will, of course, hear arguments of counsel and consider prior case law.” 225 Kan. at 567.
At the time of Chee-Craw decision, K.S.A. 1978 Supp. 72-5426 read as follows:
“(a) If in the course of professional negotiation either the board of education or the recognized professional employees’ organization, or both, believe that an impasse exists therein, either party individually or both parties together may file a petition in the district court . . . asking the district court to find that an impasse exists in professional negotiation and to order the commencement of the impasse resolution procedures as provided in K.S.A. 1977 Supp. 72-5427 and 72-5428. All such petitions shall be advanced on the docket of the district court and a summary hearing without jury shall be commenced within the five (5) days immediately following the date of filing, excluding Saturdays, Sundays and legal holidays.”
In addition to this section providing for a method of resolving a dispute as to whether an impasse exists, the Negotiations Act as it existed when Chee-Craw was decided in 1979 also included a method for determining whether a board or professional employees’ organization had engaged in a prohibited practice. K.S.A. 1978 Supp. 72-5430(d) stated:
“Any board of education or professional employees’ organization may file a petition in the district court for the county in which the principal offices of the pertinent board of education are located, for injunctive relief and to restrain the commission of a prohibited practice under this section. The procedures for obtaining injunctions and related remedies shall be in accordance with the code of civil procedure, except that the provisions of K.S.A. 60-904 shall not govern actions arising under this section.”
It is clear that when Chee-Craw was decided, disputes regarding impasses and prohibited practices were to be resolved by filing actions in district court. Thus, it made sense that the same method for resolving a dispute as to whether an impasse existed should be utilized for resolving preliminary issues as to what items were mandatorily negotiable. The rationale for our conclusion was sound, and the resulting procedure we established made sense. However, after the next legislature implemented a new administrative procedure for resolving disputes regarding both the existence of an impasse and prohibited practices, the underpinning for our Chee-Craw decision was destroyed.
In 1980, the Kansas Legislature amended K.S.A. 72-5426 and 72-5430 to allow parties to submit to the Secretary, rather than the district court, the question of whether an impasse exists or a controversy surrounding a prohibited practice. L. 1980, ch. 220, §§ 9, 12,13. The legislative history of these provisions makes it clear this legislation was proposed and passed in specific response to the Chee-Craw decision. Minutes of the House Committee on Education, March 25,1980, p. 2. Provisions relating to the district court were stricken from the existing law, and an administrative procedure involving the Secretary was implemented. The wording of the 1980 enactments appeared as follows:
“Sec. 9. K.S.A. 1979 Supp. 72-5426 is hereby amended to read as follows: 72-5426. (a) If in the course of professional negotiation either the board of education or the recognized professional employees’ organization, or both, believe that an impasse exists therein, either party individually or both parties together may file ucuuvii nr txit? tCratnct wtttt iui mu liuifiu uu uiiiv or trie soiiuui oistnct or uiu ñrtii 4« r its 4b /\ n v/\n ¶ trtrtrtbi rtv'ftl 4/\ftbv'iftrt I firtb/\/\l rvv* ftftyw w\i,iv\i4tT nt-YA* /-*■*• rtftll /\/v/\ l/UuUly XII TTXXdtCTt tilo tuvtt TOOcluUIlcu tOOrttnOtu SOttOOt OT OOllTtlluluVj yttmOr COnCcO is loeated with the secretary, asking fee district eourt secretary te find feat investigate and determine the question of whether an impasse exists in professional and negotiation and, if a finding that an impasse exists is made, to order fee com meneement ef fee begin impasse resolution procedures as provided in K.S.A. 1979 Supp. 72-5427 and 72-5428, and amendments thereto. All sueh petitions shall fee fn vtftrtd ftvi 4brt d /\ftb/%4 a4 4b a di n4%*f a4 aahv4 nv^ 4 a ni t fe r-> a YA A tYw4bA<^4 iMwt tRITtQtCOu Ou Tltv? OUOKCt or Till? UX31T10L OOtUt till Vi tt 3 utllllllttly ItOttrXtlE TTtCnOttt IU1V shall fee eommeneed Within the five (5) days immediately following the date of filing, excluding Saturdays, Sundays and legal holidays, the secretary shall begin investigation of the question raised by the petition and in order to determine the question may meet with the parties or their representatives or both, either jointly or separately, and may hold such conferences, consultations and discussions therewith as the secretary deems necessary. If the secretary decides on the basis of the investigation that a hearing is necessary to determine the question, the secretary shall conduct the hearing immediately.
(b) If the di2trict eeii~ secretary finds that no impasse exists in professional negotiation between the parties, the district eom~t secretary shall es~tef findings of faet aftd a mlis±g to that effeet aad shall order the parties to continue professional negotiation aa4 if warrtmtod by the circum~tancos, may s'etain jurisdiction in the matter.
(c) If the district eeurt secretary finds that an impasse exists in professional negotiation between the parties, the district eourt secretary shall enter findings ef feet? shall order feat begin impasse resolution procedures be commenced in accordance with K.S.A. 1979 Supp. 72-5427 and 72-5428, and amendments thereto^ and may order other appropriate relief whieh is net inconsistent- wife sueh procccding~. The e1e~k of the district eei~ shal4 ee~se ~ee?yo4~uth findings a~d ordcr~ t& be dclivcrcd forthwith to the ~ccrctaiy ~o4 to the partic~.
(d) All e~he eest~ incurrcd ii~ the district eou4 proceedings n4ef this section be bei~e equally by the besi'd e4~ education ~4 the professional employees' organination involved therein.
{ef Notwithstanding the foregoing provisions of this section, an impasse is deemed to exist if both the board of education and the recognized professional employees’ organization believe feat an impasse exists in professional negotiation have not reached agreement with respect to the terms and conditions of professional service by the statutory declaration of impasse date and, on such date, the parties may shall jointly file a notice of the existence of impasse with fee secretary stating feat fee parties are at impasse. Upon receipt of such joint notice, fee secretary shall commence begin impasse resolution procedures in accordance wife K.S.A. 1979 Supp. 72-5427 and 72-5428, and amendments thereto.”
Subsection (d) of K.S.A. 1979 Supp. 72-5430, which allowed a board or professional employees’ organization to file for injunctive relief in district court to restrain the commission of a prohibited practice, was specifically deleted by § 12 of the 1980 amendments. In its place, the legislature enacted § 13 (now K.S.A. 72-5430a), which provided:
“New Sec. 13. (a) Any controversy concerning prohibited practices may be submitted to the secretary. Proceedings against the party alleged to have committed a prohibited practice shall be commenced within six (6) months of the date of the alleged practice by service upon it by the secretary of a written notice, together with a copy of the charges. The accused party shall have twenty 20 days within which to serve a written answer to the charges, unless the secretary determines an emergency exists and requires the accused party to serve a written answer to the charges within twenty-four (24) hours of receipt. A strike or lockout shall be construed to be an emergency. The secretary shall hold a hearing promptly thereafter and at the hearing, the parties shall be permitted to be represented by counsel and to summon witnesses in their behalf. Compliance with the technical rules of evidence shall not be required.
“(b) The secretary shall make findings of fact upon all the testimony and shall either dismiss the complaint or determine that a prohibited practice has been or is being committed, and shall enter a final order granting or denying in whole or in part the relief sought. Any person aggrieved by a final order of the secretary may obtain a review of such order in the district court, in the judicial district where the principal offices of the pertinent board of education are located, by filing in such court a petition praying that the order of the secretary be modified or set aside, with copy of the complaint filed with the secretary, and thereupon the aggrieved party shall file in the court the record in the proceeding certified by the secretary.
“The court shall hear the appeal by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238, and the court may, in its discretion, permit the aggrieved party or the secretary to submit additional evidence on any issue. The appeal shall be heard and determined by the court expeditiously as possible. After hearing, the court may affirm the order of the secretary. If the order of the secretary is not affirmed, the court may set aside or modify it, in whole or in part, or may remand the proceedings to the secretary for further disposition in accordance with the order of the court.
“The jurisdiction of the district court shall be exclusive and its final order or decree shall be subject to review in the same manner as other appeals from the district court in civil cases.
“(c) The secretary is hereby authorized to file a petition in the district court to enforce his or her final orders.
“(d) If there is an alleged violation of either subsections (b)(8) or (c)(5) of K.S.A. 1979 Supp. 72-5430, as amended, the aggrieved party or the secretary is authorized to seek relief in district court.”
It is clear the legislature intended to implement an administrative mechanism through the Secretary for resolving disputes in order to more quickly reach a negotiated agreement. These changes bring into focus the fact that “[w]hen the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” State v. Clint L., 262 Kan. 174, Syl. ¶ 2, 936 P.2d 235 (1997); see Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
Although the 1980 amendments specifically encompassed the declaration of impasse and resolution of prohibited practices disputes, they failed to designate how questions as to whether specific items are mandatorily negotiable were to be determined. A possible reason for not doing so is because S.B. 539 substantially amended K.S.A. 1979 Supp. 72-5413(1) to more specifically enumerate the meaning of “terms and conditions of professional service.” L. 1980, ch. 220, § 1(1).
Although the Education Association correctly points out that the legislature is presumed to act with knowledge of relevant judicial decisions, State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988), this argument no more supports the Education Association’s position than it does that of tire Board. On one hand, the change of these statutes without specifically providing a procedure to resolve disputes regarding whether proposals are mandatorily negotiable could be taken to mean the legislature approved of the procedure adopted in Chee-Craw. On the other hand, the legislature could have accepted the reasoning of Chee-Craw that, the same procedure for determining whether an impasse exists should be applied to determinations of mandatorily negotiable items and did not see the need to enact a special procedure for such a dispute once it made the changes in die wording of 72-5413(1).
A reading of the entire Negotiations Act as it was amended in 1980 does not weigh in favor of a finding that the legislature intended the district court to resolve disputes regarding negotiability. With the exception of one statute allowing a party to file a summary court action to compel compliance with an arbitration procedure, K.S.A. 72-5424(b), all disputes involving professional negotiations are to be resolved through the Secretary, although certain provisions of the Act include the right to seek review de novo in the district court. See K.S.A. 72-5417; K.S.A. 72-5418; K.S.A. 72-5419; K.S.A. 72-5420; K.S.A. 72-5426; K.S.A. 1997 Supp. 72-5427; K.S.A. 72-5428; and K.S.A. 72-5430a. In addition, K.S.A. 72-5432 provides:
“(a) The secretary of human resources may adopt such rules and regulations as are necessary to implement and administer the provisions of K.S.A. 72-5413 through 72-5431, and amendments to such sections, which place specific duties and responsibilities upon the secretary.
“(c) The secretary of human resources has the power to issue subpoenas requiring the attendance of any witnesses and the production of any records, books, papers and documents that the secretary considers necessary to implement and administer the provisions of K.S.A. 72-5413 through 72-5431, and amendments to such sections, which place specific duties and responsibilitiés upon the secretary. In the event of refusal to obey a subpoena on the part of any person or persons, the secretary shall have the authority to bring an action to enforce the subpoena in a court of competent jurisdiction.”
We stated in U.S.D. No. 279, 247 Kan. at 533: “In construing the statute, the legislative intention is to be determined from consideration of the entire act.” We also there held that the Secretary “performs a quasi-judicial function in investigating, initiating, and conducting hearings on impasse resolution procedures and prohibited practice complaints” and found that the delegation of this authority to the Secretary was constitutional. 247 Kan. at 534-36.
When Chee-Craw was decided, the Negotiations Act provided for expeditious judicial determination of disputes. The 1980 amendments altered this procedure by requiring an initial administrative determination of disputes through the Secretary’s exercise of quasi-judicial functions. The procedure adopted in Chee-Craw to permit a summary hearing in district court when the negotiability of a proposal is in dispute was intended to speed impasse resolution. However, utilizing this same procedure under the present administrative scheme actually has the effect of slowing down the process.
In the present case, mandatory impasse procedures directed by the Secretary were interrupted when this declaratory judgment action was filed. Had this dispute been raised in the first instance for resolution by the Secretary, rather than moving the proceedings to a separate tribunal, less delay would likely have resulted. Furthermore, since enactment of the Negotiations Act, there appears to have been less litigation brought before this court regarding the mandatorily negotiable nature of contract provisions. This indicates that either all issues have been statutorily settled or the Secretary is ideally situated to quickly, summarily, and uniformly rule upon such disputes. The procedure we suggest does not appear to prevent a party disagreeing with the Secretary’s ruling from filing a prohibited practices complaint, which can be appealed de novo to the district court without interruption of the initial impasse proceedings.
This procedure draws support from several of our more recent cases, where we have described the procedure for review of controversies under the Negotiations Act. In setting forth the standard of review in U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 785 P.2d 993 (1990), we mentioned the applicability of the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., while recognizing that the district court did retain the power to review prohibited practices cases de novo.
In U.S.D. No. 251 v. Secretary of Kansas Dept. of Human Resources, 233 Kan. 436, 439, 661 P.2d 1248 (1983), we dismissed the case for lack of jurisdiction due to the failure to exhaust administrative remedies. Although involving a prohibited practices complaint, the reasoning of this case is applicable to the present situation. Quoting Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 904-906, 528 P.2d 1232 (1974), we said:
" "The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law. A primary purpose of the doctrine is the avoidance of premature interruption of the administrative process. It is normally desirable to let the administrative agency develop the necessary factual background upon which its decisions are based. Since agency decisions are frequently of a discretionary nature, or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. It is more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons he behind judicial rules sharply limiting interlocutory appeals. Frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. [Citations omitted.]
“ Tn its action in the district court, respondent has attempted to employ the provisions of the declaratory judgment statute. (K.S.A. 60-1701.) Even if an actual controversy existed between the parties, we cannot permit the use of a declaratory judgment in this situation. The courts should not interfere with administrative proceedings and assume jurisdiction of declaratory judgment proceedings until administrative remedies have been exhausted. (22 Am. Jur. 2d, Declaratory Judgments § 31, p. 881.)’ ” 233 Kan. at 438-39.
U.S.D. No. 251 involved an appeal to the district court of an order of a labor conciliator who had issued a letter ruling regarding a prohibited practices complaint. We determined this ruling was not a final order and, thus, the district court action was premature. 233 Kan. at 439.
In cases that have been before the appellate courts since the 1980 amendments to the Negotiations Act provided for resolution of disputes by the Secretary, questions involving whether a proposal is mandatorily negotiable have arisen following an appeal de novo in a district court of a prohibited practices complaint. See U.S.D. No. 352, 246 Kan. 137; U.S.D. No. 501 v. Secretary of Kansas Dept. of Human Resources, 235 Kan. 968, 685 P.2d 874 (1984); U.S.D. No. 314 v. Kansas Dept. of Human Resources, 18 Kan. App. 2d 596, 856 P.2d 1343, rev. denied 253 Kan. 864 (1993). While this is not binding authority for a decision that the Chee-Craw procedure is no longer proper, it is a strong indication that we should resolve all of these matters under a single procedure centered on the Secretary.
The district court in its ruling offered K.S.A. 60-1701, the declaratory judgment statute, as a ground for jurisdiction of this case. This ground was rejected on the basis of the failure to exhaust administrative remedies in U.S.D. No. 251, 233 Kan. 438-39. Other cases have similarly rejected 60-1701 as a method of obtaining jurisdiction over a case being litigated in another forum.
In Pugh v. City of Topeka, 151 Kan. 327, 99 P.2d 862 (1940), we held that, in the absence of unusual circumstances or emergency features, the declaratory judgment statute should not be used in pending actions to resolve questions of law or procedure, or as a substitute for ordinary actions which afford reasonably adequate remedies. 151 Kan. at 331.
“Particularly is its use not sanctioned in another action where the same issues are actually being determined. The rule is thus stated in 16 Am. Jur. 295:
“ ‘The courts will ordinarily refuse to entertain an action for declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties.’ ” 151 Kan. at 331.
In Thompson v. Amis, 208 Kan. 658, Syl. ¶ 5, 493 P.2d 1259, cert. denied 409 U.S. 847 (1972), we stated: “Where a district court has appellate jurisdiction to review the decisions of a quasi-judicial body, it has no jurisdiction in an independent equitable action to review alleged errors.” This statement was applied in Ratley v. Sheriff’s Civil Service Board, 7 Kan. App. 2d 638, 641, 646 P.2d 1133 (1982), where the court concluded: “Therefore, any appeal from a decision or ruling by such a board must be taken exclusively under K.S.A. 1981 Supp. 60-2101(d), and not by an independent action, such as one for declaratory relief.” In Kansas Sunset Assocs. v. Kansas Dept. of Health & Environment, 16 Kan. App. 2d 1, Syl. ¶¶ 1, 2, 818 P.2d 797 (1991), the Court of Appeals held:
“The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., is the exclusive means of judicial review of agency actions unless the agency is specifically exempted from application of the Act.”
“The KJRA does not deprive a party of the right to judicial declaratory relief. However, in order to obtain this relief, the procedural requirements set forth in the Act must be followed.”
Although most of these statements regarding the right to obtain declaratory relief are made in the context of reviewing agency action, they would appear equally applicable when an agency has not been permitted to take action regarding a matter it has been delegated authority to resolve. The legislature’s delegation of authority to the Secretary to decide whether an impasse exists and to institute resolution procedures includes the authority to determine preliminary matters such as negotiability, which is necessary for a deter mination of whether an impasse exists. Clearly, if the Secretaiy finds that the only disputed proposal is not mandatorily negotiable, there could be no declaration of impasse.
In Garden City Educators’ Ass’n v. Vance, 224 Kan. 732, 585 P.2d 1057 (1978), we discussed how a legislative change in the Negotiations Act altered a prior case where we judicially set a cutoff date for the end of negotiations. In holding that the specific statutes relating to impasse resolution procedures took precedence over the prior decision, we noted: “It is not unusual for the judicial construction of a statute to be affected by subsequent amendments to the statute. Such amendments may justify a judicial construction contrary to the court’s previous interpretation.” 224 Kan. at 736.
We hold the court-crafted procedure set forth in Chee-Craw is no longer appropriate in light of the statutory changes in the Negotiations Act. The determination regarding negotiability must be made by the Secretary, rather than permitting a declaratory judgment action to be filed in the district court.
We hold the Education Association failed to exhaust its administrative remedies. This compels a ruling that the district court did not have jurisdiction over this matter.
Appeal dismissed. | [
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In a letter dated January 27, 1998, to the Clerk of the Appellate Courts, respondent Gary W. Long II, of Kansas City, Kansas, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1997 Kan. Ct. R. Annot. 232).
Respondent was informally admonished on September 10,1992, for failing to diligently pursue a discrimination action on behalf of a client. On July 8, 1994, this court suspended imposition of discipline against respondent and placed him on supervised probation for a period of 2 years. In re Long, 255 Kan. 792, 877 P.2d 421 (1994). In that case, the court determined that respondent had failed to competently and diligently handle cases for three separate clients.
On October 15, 1997, a hearing was held before the Kansas Board for Discipline of Attorneys on two other complaints — A6353 and A6764. The hearing panel determined that respondent had failed to competently handle a criminal matter in federal court, had failed to competently handle a real estate matter for his client, and had failed to cooperate in the investigation of the complaint filed against him in A6764. The panel recommended that respondent be suspended from the practice of law for a period of 1 year. These two complaints had not been docketed with the Supreme Court at the time respondent surrendered his license.
At the time respondent surrendered his license, there were two additional complaints pending investigation by the Disciplinary Administrator’s office.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Gary W. Long II be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
Dated this 6th day of March, 1998.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Gary W. Long II from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1997 Kan. Ct. R. Annot. 235). | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal from an order of the trial court refusing to vacate a judgment. The pertinent facts follow.
On August 6, 1962, defendant was incarcerated in the county jail. On August 8 plaintiff (appellee) James H. Goldsberry brought this action against defendant (appellant) Ben E. Ellis to recover $1,240 for salary and commissions due him from defendant. Summons was issued and served on defendant.
At the time of his incarceration defendant was operating the Lois Motor Company and had placed in charge of the business one Theron Randall and defendant’s wife. During the pendency of the action defendant, his wife and his manager, Randall, had a conference and worked out a settlement of plaintiff’s claim. Defendant’s wife negotiated the plan of payment of the claim and defendant’s manager signed the settlement papers. Neither the defendant nor anyone on his behalf ever entered an appearance in the action.
Subsequently, on October 2, 1962, judgment was rendered by default in favor of the plaintiff and against the defendant for the full amount of the claim, less credit for the payments which were made by defendant’s wife in partial compliance with the agreed settlement.
On October 16 the defendant filed a petition in the same action to vacate the judgment rendered by reason of unavoidable casualty or misfortune (G. S. 1949, 60-3007, Seventh) preventing him from defending the action for the reason of his incarceration in the county jail.
From an order of the trial court denying defendant’s petition to vacate the judgment, he appeals.
We will not burden our reports with contentions advanced by defendant with respect to his claim that due to unavoidable casualty and misfortune he was prevented from defending the action. Suffice it to say that the rule is settled in this state that a litigant cannot invoke the code provision (G. S. 1949, 60-3007, Seventh) for relief on the ground of unavoidable casualty or misfortune preventing a defense where he has, during the entire pendency of the action, made no appearance and has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense. (Gooden v. Lewis, 101 Kan. 482, 167 Pac. 1133; Anchor Savings & Loan Ass’n v. Dysart, 189 Kan. 147, 152, 368 P. 2d 293, and cases therein cited.)
In Stockgrowers State Bank v. Clay, 150 Kan. 93, 95, 90 P. 2d 1102, in quoting from Hill v. Williams, 6 Kan. 17, it was stated that when unavoidable casualty or misfortune is alleged, the facts must be so stated as to make it appear that no reasonable or proper diligence or care could have prevented the trial or judgment; that is, that the party complaining is not himself guilty of any laches.
The record discloses that defendant was served by summons; that he employed no attorney and made no appearance but utterly disregarded the action. He sought no relief from the court by way of an appearance. He sought no continuance but entered into a settlement of the action through his manager and wife, and the judgment was entered in accordance therewith. Under such facts it cannot be said he was denied the right to defend the action by reason of unavoidable casualty or misfortune.
In view of what has been said, the judgment of the trial court must be affirmed.
It is so ordered.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 10th of May 1870, the firm of Med-berry, Yetter & Co. was constituted by the following article of agreement:
“Article of agreement made and entered into this 10th of May 1870, by and between H. N. Medberry, party of the first part, and Penn Tetter, party of the second part, whereby said party of the first part agrees to furnish two thousand dollars as the capital stock, and the said party of the second part agrees to furnish one thousand dollars, for the purpose of transacting a lumber business in Columbus and Chetopa, Kansas, the profits and losses to be equally divided, a true and accurate account of the transactions of said firm to, be kept'in books provided for that purpose. The firm-name to be Medberry, Yetter & Co. The Company, C. A. Leigh-ton and F. M. Shaw, are known only as security to the above firm. Said firm to take no risks,, go no securities outside of their legitimate line of business, without the consent of all the parties concerned. The said parties not to be bounden for the private accounts of either individual belonging to said firm. This article applies to business anywhere.
“H. N. Medberry. F. M. Shaw.
“Penn Yetter. C. A. Leighton.”
In November 1870, the firm was dissolved, owing Soper, Brainard & Co. about $3,500. Medberry continued the business, taking the property, and assuming the debts. In January 1871, having made some purchases since the dissolution, Medberry settled with Soper, Brainard & Co., . . " . n , , giving his individual note for the total amount of the firm’s and his own debts. This note was subsequently renewed, and payment made of four months interest in advance. Not being paid when due, Soper, Brainard & Co. brought their action against all the members of the firm of Medberry, Yetter & Co. for the amount due by that firm at the time of its dissolution, and not subsequently paid, and brought the last note of Medberry’s into court on the trial and tendered it to the defendants. They also denied'any knowledge of the stipulations of the partnership. Shaw and Leighton insisted that they were only securities to the firm for $1,000, as an accommodation to Yetter to make him an equal partner with Medberry, and that they were not to share in the profits or losses,.and that this was duly communicated to Soper, Brainard & Co. Upon the trial the court gave and refused instructions to the jury as follows. The plaintiffs below asked the court below to give these instructions:
“ 1st. The taking of the individual note of H. N. Medberry by the plaintiffs for goods sold by plaintiffs to the firm of Medberry, Yetter & Co., the said H. N. Medberry being one of the firm of Medberry, Yetter & Co., does not have the legal effect to discharge the other members of the firm, unless such individual note was taken with an agreement and understanding to that effect; and the fact that the note was negotiable, makes no difference, when it remains in the hands of the plaintiffs, and is produced at the trial of the action against the firm for the goods sold, but it is not relied on as the cause of action, and the maker has become insolvent. [Given. Excepted to by defendants.]
“ 2d. That the burden of proving the defense in this action, set up by Shaw and Leighton, that they had been discharged by the acts of the plaintiffs from all liability as members of the firm of Medberry, Yetter & Co., and that plaintiffs had knowledge that, at the organization of the firm of Medberry, Yetter & Co., Shaw and Leighton, by special contract, limited their liability to the extent of $1,000 as security for Yetter, is upon the defendants who plead such defense. [Given. Excepted to by defendants.]
“3d. The fact that, at the time of taking the individual . note of H. N. Medberry on account of the indebtedness of the firm of Medberry; Yetter & Co. by Soper, Brainard & Co., the amount of said note was passed to the credit of Med-berry, Yetter & Co. on the books of Soper, Brainard & Co., and said account balanced, does not alone have the legal effect to work a payment of said account of Medberry, Yetter & Co.; but this is a matter subject to explanation by the evidence in the case. [Given. Excepted to by defendants.]
“4th. In all cases the members of limited partnerships shall be subject to all liabilities of general partners, unless at the time of forming such partnership they shall make and severally sign a certificate containing the name of the firm, the general nature of the business to be transacted, the names of all general and special partners, distinguishing them with their place of residence, the amount of capital stock which each special partner contributed to the capital stock, and the period at which the partnership is to commence and terminate. Such certificate shall be acknowledged by the several persons signing the same before some officer authorized by law to take the acknowledgment of deeds, and filed in the office of the county clerk of the county in which the principal place of business of the partnership shall be situated, and thé terms of the partnership shall be published, when recorded, • for at least four weeks in a newspaper published in the county-in which the record shall be made; and if such publication be not made, the partnership shall be deemed general.” [Given. Excepted to by defendants.]
The defendants below (plaintiffs in error,) asked the court to charge jury as follows:
“1st. If the'jury find that the firm of Medberry, Yetter & Co. dissolved partnership, and the firm of Soper, Brainard & Co., with notice of the dissolution, continued to do business with H. N. Medberry, and took the individual note of H. N. Medberry for full partnership account of Medberry, Yetter & Co., and extended the time of payment by payment of interest, and that the said H. N. Medberry, at the time of the dissolution of the firm of Medberry, Yetter & Co., had transferred to him assets sufficient to pay the debts of the firm, these facts are to be taken into consideration by the jury as tending to show the release of the firm of Medberry, Yetter & Co. from their liability to Soper, Brainard & Co., and of substituting H. N. Medberry in its stead.” [Given, with the following modification.•] “But the act of taking the individual note of H. N. Medberry for the amount of the partnership account does not operate to pay such account, unless it was agreed to have that effect.” [Modification excepted to by defendants.]
“2d. The mutual agency of the partners, which is created by the partnership, ceases when it is dissolved; and after dissolution, neither can make a note or other contract binding on the other partners, unless authorized by them to do so; and when one partner goes out of a firm, and another comes in and assumes the debts of the firm, and gives notice of dissolution to creditors of old firm, and with notice that new firm takes all assets and assumes all liabilities, and the creditor with this knowledge, without notice to the retiring members of the old firm, and without their consent, takes the note of the new firm for the old-firm debt, balances the old account by such note, and afterward renews the note, receives interest, and extends payment, the creditor prima facie discharges the retiring members of the old firm; and it is incumbent on such creditor to show a different and other understanding between himself and the retiring members of the firm. [Refused, and defendants excepted.]
“3d. The agreement of parties with regard'to settlement of the firm and partnership debts, will not affect third parties who are not advised of such agreement; but when a creditor or creditors are advised of such an arrangement, and the creditors accept one partner as his or their debtor in lieu of the partnership, and a new negotiatiable paper passes from the debtor so accepted to the creditor, there is a new consideration, and this is generally sufficient to support an agreement to release and exonerate the other partners.” To which the cowrt added — “but whether there be such an agreement of release is a question of fact for the jury.” [Given as modified; defendants excepted to the modification.]
“4th. If the jury believe from the evidence, that the firm of Soper, Brainard & Co., on the 18th of August 1871, took from H. N. Medberry, one of the members of the late firm of Medberry, Yetter & Co., a promissory note for the full amount of the indebtedness of the said firm of Medberry, Yetter & Co., payable in four months from date thereof, and received from the said H. N. Medberry the interest in advance on said note -for the time it was to run, and extended the time of payment of indebtedness of the said firm of Med-berry, Yetter & Co. for the period of four months from that date, without the knowledge or consent of the retiring members of said firm, then, in that case, the firm of Soper, Brainard & Co. were estopped from enforcing the collection of said indebtedness of Medberry, Yetter & Co. during the time said note was to run, and for which interest had been taken; and the insolvency of the maker of the note during the period the note was to run releases the retiring members of said firm. [Refused, and defendants excepted.]
“ 5th. If a creditor of a firm agrees that the retiring partners of a firm shall be considered simply as surety for the debt of the old partnership, and the creditor afterward, whether holding the partnership securities or otherwise, gives time to the new firm for the payment of the debt, the retiring partners in their character of surety are thereby discharged. [Given.]
“ 6th. Shaw, Leighton, and Yetter, in this action, are called the retiring members of the firm of Medberry, Yetter & Co. Soper, Brainard & Co. were creditors of the firm of Med-berry, Yetter & Co. At its dissolution, H. N. Medberry was the successor of Medberry, Yetter & Co. The retiring members of the firm are held for the debt of the old firm, unless discharged by some act or conduct on the part of So- per, Brainard & Co. The firm of Soper, Brainard & Co. may be held bound by the act or conduct of any member of the firm, so far as the same may concern the business of the firm. It is rarely that a partnership firm, or member thereof, assents to an arrangement to discharge, expressly and directly; but such an assent may be implied. Whether there is such an implied assent or not, is a question of fact for the jury. In determining whether such an assent has been given by Soper, Brainard & Co. to -the discharge of Shaw, Leighton and Yetter from the liability of the firm debt of Medberry, Yetter & Co., the jury are authorized to take into consideration the time, facts, and circumstances of the dissolution of the firm of Medberry, Yetter & Co., and notice thereof to Soper, Brainard & Co.; the fact of transferring the accounts to H. N. Medberry; the fact of continuing to extend credit to him; the fact of taking his individual note for the whole amount of indebtedness; the fact of receiving payment; the fact of extending time on the note; the fact of including H. N. Medberry’s individual debt with the partnership debt; the fact of surrendering the first, and taking the second note, and receiving interest in advance. These, with all other facts in evidence, are proper subject-matters to be taken into consideration by the jury in arriving at a conclusion as to whether Soper, Brainard & Co. assented to the release of Shaw, Leigh-ton and Yetter from liability to Soper, Brainard & Co. for the firm debt of Medberry, Yetter & Co.” [Refused, and defendants excepted.]
Upon these instructions we remark, that where the existence of a partnership is conceded, the presumption of law is, that each partner is liable for all the debts of the firm; and that where either partner claims that his liability is limited by special contract between the partners, and no proceedings have been had under the limited-partnership act, (ch.74, Gen. Stat. 1868, p. 600,) it is essential that notice to or knowledge by the creditor of such contract-limitation be shown, or as to him it will not exist. A party dealing with a firm, need not inquire as to the special arrangements between the partners. It is enough for him to know that the partnership exists. Each partner then is liable for the total debt.
II. The acceptance of a note, by the creditor, of one of several joint debtors, does not have the effect to discharge the other debtors, without an agreement to receive it in payment or satisfaction. It will be borne in mind, that the dissolution of a partnership in no respect changes the liability of the several partners to the creditors. A. Each is liable for the entire debt, after, as fully as before, the dissolution. Nor does the giving by a debtor of his promissory note, discharge the debt. It is but a written evidence of his indebtedness. True, it may be accepted in payment, if the parties so agree; and whether they do so agree or not, is a question of fact. Kermeyer v. Newby, 14 Kas. 164; McCoy v. Hazlett, 14 Kas. 430; Cooper v. Condon, 15 Kas. 572; Shepard v. Allen, 16 Kas. 182. If the note of all the partners would not discharge the debt of the firm, a fortiori the note of one would not. Authorities are conflicting as to whether the receipt of a note is or is not prima facie evidence that it is taken in satisfaction of the prior indebtedness. But it is generally agreed that it is not "necessarily satisfaction, and that whether it be so or not depends upon the agreement of the parties. Dixon, C. J., in the case of Eastman v. Porter, 14 Wis. 39, says: “It is a clear rule of the common law, that a subsisting simple contract is not discharged or extinguished by the acceptance of another contract of the same nature, given by the same party, and founded upon the same consideration, unless it be expressly so agreed. The new contract is considered as nothing more than a new evidence of the same original contract, or indebtedness; and if it is not performed, the party may resort to his remedy on the latter.” And again: “The promissory note of the debtor, taken for an antecedent simple contract debt, does not extinguish the original debt, if the note remains in the hands of the creditor, due and unpaid.” In Parker v. Canfield, 37 Conn. 250, it is decided that “the taking of a renewal note from one who had dormant partners when the original was given, after the termination of the partnership, and without any intention to discharge the dormant partners, does not discharge the claim against the copartnership.” So in 29 Penn. St. 404, in the case of Callier v. Leech, the court says: “Where the creditor of a firm takes the notes of the surviving partners for the amount of his claim, or a judgment against them for the same, he does not release the estate of the deceased partner, unless it is so agreed at the time.” In Harris v. Farwell, 15 Eng. L. & Eq. 70, it is decided, that “a contract to discharge a retiring partner from a debt due from the firm, may be proved either by an express agreement, or by facts and conduct from which it may be fairly inferred. Taking a new security is not of itself sufficient to discharge the retiring partner, but there must also be an agreement, either express, or to ‘be implied, to discharge the old firm.” It is decided in the case of Yarnell v. Anderson, 14 Mo. 619, that “taking a new note with surety from a partner, after the partnership is dissolved, for the note of the partnership, is not of itself a discharge of the partner who has retired.” In Gore on Partnership, Am. Ed. of 1825, p. 200, the rule is thus defined,: “When the two requisites of a joint interest and a joint credit concur, nothing but actual satisfaction, or the extinguishment of the original consideration by the acceptance of a higher securityf can invalidate the claim which the creditor possesses against the firm.” The New York authorities are still stronger. In Cole v. C. & E. Sackett, 1 Hill, 516, this was the decision: “C. & E. being . partners, gave their note for a debt of the firm, under an agreement that it should be in full satisfaction; and, after dissolving, E. agreed, for a consideration received from C., to assume and pay the debt for which the note was given, and accordingly took up the firm note and gave his own in lieu; and it was held to be no bar to a recovery on the original consideration.” The opinion in that case was delivered by Judge Co wen, and he declared the doctrine to be entirely settled, that the promissory note of a debtor, given for a precedent demand, will not operate as payment, so as to preclude the creditor from suing on the original consideration, though given under an express agreement that it should be received in full satisfaction; but otherwise, if the note be that of a third person. This doctrine was subsequently reconsidered and approved in Waydell v. Luer, 5 Hill, 448; and in that case it was held that the giving of a promissory note by one of several partners, for a demand antecedently due from all, will not extinguish their liability, although the creditor expressly accepts the individual note in satisfaction. Judge Oowen delivered the opinion in that case also, and reviewed all the authorities, English and American. See also, Hughes v. Wheeler, 8 Cow. 77; Frentress v. Markle, 2 G. Greene, 553. In Vermont, Massachusetts, Maine and perhaps other states, the receipt of the note seems to be considered evidence, prima facie at least, that it was taken in satisfaction of the original debt. Stephens v. Thompson, 28 Vt. 77; Chapman v. Durant, 10 Mass. 47, and note; Descadillas v. Harris, 8 Greenleaf, 298. Such also seems to be the view of Prof. Parsons. 1 Pars, on Cont. 145, 146; Pars, on Part. 422, 423.
There was no error in refusing the second instruction asked by the defendants. It is based upon an assumption not in a'ccord with the facts of this case. “When one partner goes out of a firm, and another comes in.” Here some of the partners went out, but no new ones came in. The notes carried the promise of no one, not originally liable, no one not a member of the firm at the time of the creation of the debt. The refusal of the sixth instruction, if error at all, was not one prejudicing the material rights of the plaintiffs in error sufficiently to justify a reversal of the judgment against them. It amounted simply to this, that all the facts in evidence were proper for the jury to consider in determining whether the plaintiffs in error were released by defendants in error. The special matters named had been nearly all referred to in the first instruction given at the instance of defendants, and it was unnecessary to refer to them again.
We see no error of which the plaintiffs in error can complain in the instructions. The conflict in the testimony was settled by the jury against them, and therefore the judgment must be affirmed.
Valentine, J., concurring.
Hoeton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a note and mortgage brought by Francis Kirkwood against William H. Pearsoll and wife, and said Waterson and Edwards. The facts of the case seem to be substantially as follows: The note was executed July 28th 1860, by said Pearsoll to John Potter for $150, due in one year, with interest from date at the rate of twenty per cent, per annum. The mortgage was executed at the same time by Pearsoll and wife to Potter on the S.W. J of sec. 9, township 4, range 6, in Marshall county, to secure the payment of the note, which mortgage was duly recorded 20th November 1860. During the same year Potter assigned said note and mortgage to said Kirkwood. On January 23d 1864, Pearsoll paid Kirkwood $2 on said note, for the purpose of postponing the operation of the statute of limitation thereon. On February 8th 1864, Pearsoll and wife conveyed by a quitclaim deed all their interest in and to said land to Thomas W. Waterson, one of the plaintiffs in error. E. E. Edwards, the other plaintiff in error, (who was also a defendant below,) claims under Water-son; and since February 8th 1864 the land has been in the possession of Waterson and his grantees, who have paid the taxes assessed against it, and made improvements thereon. On May 25th 1864 Pearsoll and wife became non-residents of Kansas, and have never since been within the-boundaries of the state. During all said time, however, all the other parties above mentioned have continuously resided in Kansas. On March 8th 1865, Waterson obtained a tax deed for said land. In March 1864 Waterson purchased said land at sheriff’s sale, and received a sheriff’s deed therefor, which deed was duly recorded May 28th 1864. On August 30th 1872, Kirkwood commenced this action in the district court of Marshall county. He made Pearsoll and wife, and Waterson and Edwards, parties defendant to the action. He asked for a personal judgment against Pearsoll for the amount of said note, and interest, and that the land be sold for the purpose of paying such judgment. Service was obtained on Pearsoll and wife by publication, and on Waterson and Edwards personally. Waterson and Edwards answered, each filing a separate answer; Pearsoll and yvife made default. Kirkwood replied to portions of Waterson’s and Edwards’ answers, but demurred to the 6th defense stated in Waterson’s answer. This defense set up the statute of limitations. The court overruled Kirkwood’s demurrer; and then, without rendering any judgment, or giving Kirkwood any leave to plead over, (but neither of these was asked for,) granted a change of venue on Kirk-wood’s application therefor to Nemaha county, which county is in another judicial district. After the case was taken to Nemaha county, the district court of that county permitted Kirkwood, upon certain terms- and conditions, to file a reply denying generally all the allegations of the answers of both Waterson-and Edwards; and the case was then continued till the next term of the court. At such next term the case was tried by the court without a jury; and the court made general findings of fact and of law upon the issues, as follows :
“And the court, after hearing the testimony and arguments of counsel, and being fully advised in the premises, does find the issues for the plaintiff, and does find that there is due the plaintiff upon the note sued on in this action the sum of $562.98, and that the said lands and tenements mentioned in plaintiff’s petition stand charged' with the payment of the same.”
The court'then rendered judgment upon these findings in favor of the plaintiff below, and against Pearsoll for the said sum of $562.98, and costs, and ordered that the land be sold to satisfy said judgment; and then comes the following journal entry:
“And thereupon, at the request of defendants, the court reduced its findings of law and of fact to writing, and filed them in this case; to all o’f which findings of law and of fact, defendants duly excepted.”
Among the papers in the case is found a paper containing certain special findings of fact and conclusions of law, signed by the judge of the court that tried the cause. We do not think that these special findings are in any particular inconsistent with the general findings, although it is possible that the special findings do not cover the entire ground, as the general findings do, and possibly do not decide every issue raised by the pleadings. But even if they do not decide every issue presented by the pleadingS; g^yq we <q0 not think that the plaintiffs in error are in any proper condition to complain. After allowing the court to make general findings, covering all the issues, and to render judgment, if the plaintiffs in error then desired special findings, they should have designated specifically the questions or issues upon which they wished the court to find specially. And every question or issue, which they did not so specifically designate and call the attention of the court to, should be considered as found against them. Under the circumstances of this case, we must consider every question and issue not covered by the special findings, if there is any such question or issue, as found against the plaintiffs in error.
The plaintiffs in error claim that the court below erred in granting such change of venue. We think the showing for the change was weak, and if the court below had refused to grant it its ruling would probably not have been considered as material error. But the court below has a great deal of discretion in granting changes of venue in civil cases; and we cannot in this case say that the court below abused its discretion by granting the change. Besides, we cannot see from the record in this case that any substantial right of the plaintiffs in error was materially affected by the change. There was evidently no substantial error committed in allowing said reply to be filed. It probably raised no new issue. But even if it did, the court below did not err in permitting it to be filed.
We now come to the main question raised in this case, to-wit: Was the plaintiff’s cause of action as against Water-son and Edwards barred by the statute of limitations at the time this action was commenced ? The writer of this opinion is inclined to think, but with great doubts, that it was; but the other justices of this court have overruled If the decision in the case of Wood v. 1-um J-iiui • Qoodfellow, 43 Cal. 185, states the law correctly for Kansas, then the action was barred. A majority of this court think that that decision is not good' law in Kansas. That is the only case, of which we have any knowledge, which will exactly apply to this case. We all agree that as to Pearsoll and wife, the action never was barred. The note became due July 28th 1861; and the action which then accrued thereon could not have been barred by any statute of limitations earlier than on July 28th 1864; (Laws of 1859, page 84, § 20.) But before that time a payment was made on the note, and Pearsoll and wife removed from the state. The payment was made on the note on January 23d 1864, before the note or mortgage was barred, while Pearsoll still owned the land, and before Waterson and Edwards ever had any interest therein. This payment on the note so postponed the running of the statute that the action on the note and mortgage could not under any circumstances have been barred prior to January 23d, 1867; (Laws of 1859, page 86, §31.) But long before this time elapsed, even before July 28th 1864, and on May 25th 1864, Pearsoll and wife left the state, and have never returned. The statute of limitations therefore wholly ceased to operate as to Pearsoll and wife on May 25th 1864, (Laws of 1859, page 85, § 28,) a time when by no possibility could the action on the note and mortgage have been barred. The grounds upon which a majority of this court holds that Waterson and Edwards cannot plead the statute of limitations are as follows: Waterson and Edwards have merely succeeded to the rights of Pearsoll. They stand in his shoes. They have got just what he would have if he had not transferred his interest in the land to them. They have nothing more than he at any time had the right to transfer to them. The stream has not risen and cannot rise higher than the fountain, nor can they by their purchase of Pearsoll’s interest in the land cast additional burdens and inconveniences upon the holder of the mortgage. And therefore, as Pearsoll has never obtained or had the right to plead the statute of limitations, his grantees, Waterson and Edwards, have no such right. It is unnecessary to state the argument on the' other side. Taking this view of the question, the sixth defense of Waterson’s answer stated no defense to Kirkwood’s petition.
We have considered all the questions presented to us. The plaintiffs in error do not seem to claim that their sheriff’s deed and tax deed raise any questions different from those which we have discussed. Hence we have said nothing about those deeds.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opjnion of the court was delivered by
Valentine, J.:
This was an action on four certain promissory notes. Each of the notes was executed by the defendants below, “Washington & Simpson.” Two of the notes were made payable “to the order of A. L. Austin,” and the other two “to the order of John Getty.” The plaintiff Hobart now claims to be the owner and holder of said four notes. He does not however allege in his petition below or elsewhere that the notes were ever indorsed to him, or to any one else, or that they were ever indorsed at all, or that they were transferred to himself or to any one else by indorsement; and the copies which he gives do not purport to have ever been indorsed. He alleges that each of the notes was transferred to him; but how it was transferred, he does not state. As to the first note, he says “that before said note became due it was for a valuable consideration by the said Austin transferred to the said plaintiff, who on the 28th of August 1874 was and now is the lawful owner and holder thereof.” He alleges the transference of the other three notes in substantially the above form. The defendants in their answer deny that said notes were ever transferred, or that the plaintiff was ever the owner or holder thereof, or that he ever had any right, title or interest therein, and allege affirmatively that the payees of said notes are respectively the owners and holders thereof. These allegations and denials in the answer were not verified by the affidavit of any person. The defendants also alleged some other matter in their answer, to which the plaintiff replied. A jury was then impanneled to try the cause. Neither party introduced any evidence. The court then instructed the jury as follows: “Gentlemen of the jury, you are instructed that upon the pleadings and the evidence in this case the plaintiff is entitled to recover of the defendants the sum of $10,741.18.” The jury then found a verdict in favor of the plaintiff for / that amount, and judgment was rendered accordingly. The judgment was however afterward reduced to $10,477.52, which was the aggregate amount of the notes with interest. The defendants moved for a new trial, which motion was overruled. All said rulings were duly excepted to by the defendants, and they now bring the case to this court for review.
Ve think the court below erred in its charge to the jury. Under the pleadings it devolved upon the plaintiff to prove that he was the owner and holder of said notes, and as he did not do so the verdict and judgment should have been for the defendants. Ordinarily, where a note payable to order is transferred, it is so transferred by a written indorsement placed on its back. And ordinarily when such a note is sued on, the plaintiff inserts in his petition an allegation of the execution of sueh indorsement, and such “allegation” can be put in issue only by a denial thereof, verified by affidavit. (Gen. Stat. 650, §108.) The statute provides that “in all actions, allegations of the execution of written instruments, and indorsements thereon, * * * shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” But a negotiable promissory note, payable to order, as well as every other kind of promissory note, may be transferred in this state without any indorsement, or without any written instrument, and by delivery merely, and so as to authorize the transferee to sue in his own name. (Gen. Stat. 635, §26; Williams v. Norton, 3 Kas. 295; McCrum v. Corby, 11 Kas. 465, 470.) Therefore, in an action on ány kind of promissory note by a person who is not the payee thereof, where the petition says nothing about any indorsement thereof, but there is an allegation in the petition stating that the note was duly transferred to the plaintiff, and that he is now the owner and holder thereof, such allegation may be put in issue by a pleading not verified by affidavit. Now in the present case there is no “allegation” of any “indorsement” of either of the notes sued on. As to two of them, there is not the slightest intimation to be found in any portion of the record as to any kind of an indorsement. As to the other two, the only intimation of any kind as to any indorsement is to be found in the third count of the petition, where it is stated that these two notes were protested, and notice of their dishonor was “duly given to the indorsers.” Now it will be remembered that the plaintiff in this case was not.the payee of any one of said notes, and was not entitled to recover on any one unless it was legally shown that he was the transferee thereof. We do not think that it was legally shown that he was the transferee of any one of said notes, yet he was allowed to recover the full amount of every one of them. We think the court below erred in this.
The judgment of the court below must therefore be reversed, and the case remanded for a new trial.
All the Justices concurring. - | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error recovered a judgment in a justice’s court. Plaintiff in error sought to review that judgment, by petition in error in the district court, but that court affirmed the judgment; and he now brings the case here. The first question we meet, and one which, after examination, we are compelled to decide against the plaintiff in error, is, whether there is any properly-authenticated bill of exceptions. The facts are these: Attached to the petition in error, as filed in the district court, was what appeared' to be an original bill of exceptions, and a transcript from the docket of the justice. An examination of the transcript will fail to show that any bill of exceptions was ever taken. True, the justice states in his docket that such and such questions were asked, objected to, and objections sustained, and exceptions taken by defendant. This would seem to be simply his own recitation on his docket of what took place at the trial, and not a statement that a bill of exceptions had been duly prepared and signed. But conceding, under the liberal construction to. be given to proceedings before justices, that the latter is the true import of the language, and was so intended by the justice, still there is nothing to show that the bill of exceptions was ever filed with him so us to become a part of his record. Upon the face of it, it purports to be an original document. It carries no file-marks of the justice. It bears no date. But in order to show that it must have been signed within the ten days provided by statute, (Laws 1870, p. 186, §13,) counsel refer to the fact that it bears the file-marks of the clerk of the district court as of a date one day after the trial before the justice. While the file-mark may be sufficient for this purpose, it only makes more plain the fact that this paper, purporting to be a bill of exceptions, never became a part of the justice’s record, for the certificate of the justice to the transcript which follows it bears date some twenty days thereafter. The fact doubtless is, as stated by counsel in their brief, that plaintiff in error filed a petition in error in the district court the day after the trial, with only the original bill of exceptions attached. Fearing that that did not contain a sufficient presentation of the case, he dismissed this proceeding and refiled his petition in error, adding to it a transcript from the jus tice’s docket. The transcript therefore is dated long after the bill of exceptions was first filed in the district court. The office of a bill of exceptions is, to bring upon the record some portion of those proceedings in the case which do not of course and of right go upon the record. It is itself a part of the record; (Gen. Stat. p. 686, § 303; p. 798, § 112.) It is to be filed and left with the court in which it was taken, and is no more to be removed therefrom than any other part of the record. Brown v. Rhodes, 1 Kas. 359. If a party desires to use any part of the record, in other proceedings, in other courts, he is to take a certified copy. Now this bill of exceptions, though signed by the justice, does not appear to have ever been filed with him, or made a part of the record in the cause. And no transcript of any bill of exceptions certified to by the justice, was attached to the petition in error as it was filed in the district court. 'The plaintiff in error might with equal propriety have taken the leaf out of the justice’s docket upon which the proceedings in this case were entered, and attached that to his petition, instead of obtaining a certified transcript. This may appear quite technical, and it may seem that if a certified transcript of a paper, after it had been filed, was sufficient, the original, before it was filed, ought to be. But the law says a transcript; (Gen. Stat. p.737, § 546;) and shall we hold that the district court erred when it followed the law? Nor is it altogether an arbitrary technicality. In this case it might not perhaps work any injury, but it can easily be seen that the due and orderly administration of justice might be interfered with if the records of a cause could be broken up, and a part removed from the court in which it was tried. Be that as it may, we cannot say that the district court erred in following the plain letter of the law.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiffs filed an inverse condemnation action against the Kansas Department of Transportation (KDOT) alleging a loss of water to their well was caused by KDOT’s actions. The district court found that plaintiffs’ proper remedy was in tort rather than in inverse condemnation and granted summary judgment to KDOT. Plaintiffs appealed, claiming the district court erred in ruling that the plaintiffs could not bring an inverse condemnation action. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
In 1982, the State of Kansas filed a condemnation action to secure property rights from Spring Hill Community Church (Church) to assist in the reconstruction of Highway 169 south of Olathe, Kansas. KDOT states:
“The condemnation petition was for a permanent easement for controlled access right of way and removal of borrow material over and upon a tract of land that overwrote an existing road easement located in front of the subject tract. The supplemental easement would allow for highway construction, scooping of road ditches, the removal of several walnut trees and construction of an entrance located in the front of a residence located on the property.”
In July 1982, the Church conveyed by warranty deed the tract of land the State required for the construction easement. The tract of land was then deleted from the condemnation action by court order on July 26, 1982.
Subsequently, the Church sold a portion of the remainder of its land to the Deishers. The land conveyed contained a water well that existed prior to the conveyance of property to the State. According to the conveyance, the Church and the Deishers would share the well water.
In 1985, Clarkson Construction, the general contractor, began work on the highway improvement on the easement adjacent to the Deishers’ land. As part of the work on KDOT’s highway project, Clarkson performed blasting to aid in the removal of material.
Eight years later, in April 1993, the Deishers filed a petition for inverse condemnation against the Kansas Department of Transportation and Michael L. Johnston, Secretary of Transportation alleging that within the prior 2 years, plaintiffs had discovered that the water levels in their well had “gone down to unusable levels of less than 6 feet,” while throughout the history of the property the water tables had been about 18-24 feet. The plaintiffs alleged that the cause of the drop in water level was the “construction, continuous use, maintenance and design of U.S. Highway 169” by KDOT and/or their agents. The Deishers further alleged that “the least part of the cause for said problems was due to blasting which took place near Plaintiffs property in 1988 for the purpose of construction.” Plaintiffs claimed damages equal to the decrease in fair market value of their property ($100,000) and $50,000 to purchase a truck to carry water to the property.
In December 1994, plaintiff filed an amended petition adding Clarkson Construction as a defendant. In the amended petition, plaintiffs alleged that in “1985-1987,” when KDOT contracted to have lighting done on Highway 169 in front of the property owned by the plaintiffs, Clarkson, the general contractor, performed blasting and “[a]s a direct and proximate result of a blasting done by Defendant Clarkson, . . . the water tables of a certain well owned by the plaintiffs have receded to a certain level.”
Count I of the amended petition alleged that the actions of KDOT “are of a continuing nature and deprive Plaintiffs of the constitutional right to enjoy their property, and said actions have deprived Plaintiffs of their property rights without compensation, without due process of law and are, in effect, an inverse condem nation.” (During discovery, plaintiffs’ expert was deposed and stated that blasting disturbed the underground strata of rock which served as a conduit for water coming into the plaintiffs’ well.)
Count II of the amended petition alleged negligence against Clarkson in the widening of Highway 169 and in blasting related to the widening. Count III alleged Clarkson was strictly liable for damages resulting from conducting an ultrahazardous activity. The tort claims against Clarkson were dismissed because the 2-year statute of limitations had expired.
Subsequently, KDOT filed a motion for summary judgment. KDOT asserted that the 2-year limitation for bringing a tort action had expired prior to plaintiffs’ filing their cause of action. The district judge agreed, finding in part:
“5. Plaintiffs do not claim that their well was damaged or disturbed by the blasting. Rather, their expert’s opinion is that the blasting disturbed the underground strata of rock which served as a conduit for water coming into their well.
“6. The well lost water immediately following the blasting and has continued to show a lack of capacity to retain water.
“7. This lawsuit was filed sometime in 1993.”
The district court then concluded:
“1. Inverse condemnation has been recognized as a cause of action in Kansas. In Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 776 (1973), the Court stated:
‘Inverse condemnation actions have long been recognized in Kansas. When land or rights therein are appropriated by a public corporation having rights of eminent domain without first procuring title the owner may waive formal condemnation proceedings and other formal modes of acquisition and sue to recover compensation. The owner may recover all damages which he has sustained by reason of the permanent taking and appropriation of his property.’ 211 Kan. at 780.
“2. The right to maintain an inverse condemnation proceeding is rooted in concepts of implied contract. “When a public entity appropriates and uses property or rights therein, without compensating the owner, an implied contractual obligation arises to pay the owner reasonable value of the property or rights taken without compensation.’ Ventures in Property I v. City of Wichita, 225 Kan. 698, 706, 594 P.2d 671 (1979).
“3. ‘Inverse condemnation is an action or eminent domain proceeding initiated by a person having an interest in realty rather than by the government condemner. It is available when private property has actually been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness on the part of the taker to bring an action to acquire the property.’ Lone Star Industries, Inc. v. Secretary, Kansas Department of Transportation, 234 Kan. 121, 124, 671 P.2d 511 (1983).
“4. A taking, to be sufficient to serve as grounds for an inverse condemnation proceeding, is defined as ‘the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides.’ Lone Star, 234 Kan. at 125.
“5. Actual invasion of the property is not required in order to institute inverse condemnation proceedings. Ventures in Property I, 225 Kan. at 708.
“In Ventures in Property 1, an inverse condemnation was found to have taken place when the city of Wichita refused to approve a plat for an owner of real estate to develop its property because the city had future plans to build a thoroughfare over the same property, and did not want to pay for condemning developed property at such time as it was ready to build the highway.
“Removal of lateral support to the extent that plaintiffs’ back yards collapsed and fell to the highway construction below was held to be an inverse condemnation in Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 (1973), even though the construction never touched or invaded the plaintiffs’ property.
“6. Lack of a formal condemnation proceeding is a prerequisite to the institution of an inverse condemnation suit: “When land or rights therein are appropriated by a public corporation having rights of eminent domain without first procuring title the owner may . . . sue to recover compensation.’ Sanders, 211 Kan. at 780 (Emphasis added). Accord, Atchison v. State Highway Comm., 161 Kan. 661, 171 P.2d 287 (1946).
“A thread running through all of the condemnation cases cited above is that an inverse condemnation proceeding is a substitute for a formal condemnation proceeding. It is not a supplement for a formal proceeding that does not yield all of the satisfaction that a landowner desires. For instance, in Lone Star Industries, supra, the Supreme Court noted that originally two plaintiffs had filed inverse condemnation proceedings, which had been consolidated at the trial court level and for appeal. Between the time of the filing of the notice of appeal and oral argument, the Secretary of KDOT had instituted formal eminent domain proceedings against one of the two plaintiffs. The Court held that the institution of the formal proceeding rendered the inverse proceeding moot: ‘Clearly all elements of damage arising from the taking which are legally compensable will be determined in die eminent domain action, thereby rendering Count I moot as to Crupper.’ Lone Star Industries, 234 Kan. at 122.
“When there has been a formal proceeding and the landowner suffers additional damages by reason of the method that the work is performed upon the land that has been condemned, the proper way for the landowner to redress his rights is through a tort action. Plaintiffs had available to them a suit sounding in negligence or in strict liability for ultrahazardous activities (i.e., the blasting). They failed to bring their suit within the two years required by law for filing a tort suit. Regardless of their reason for not fihng their tort suit, their inverse condemnation proceeding is subject to summary judgment in favor of the defendant because the property was subject to a prior condemnation proceeding for the same project.”
Plaintiffs appealed.
SUMMARY JUDGMENT
Plaintiffs assert that summary judgment was improper because the district court erred in analyzing the law applicable to inverse condemnation with respect to the facts of this case.
Summary judgment is appropriate when all of the evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). When the only question presented is a question of law, summary judgment is proper. Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). To preclude summary judgment, the party opposing the motion must come forward with evidence to establish a dispute as to a fact that is material to the conclusive issues in the case. Kerns, 255 Kan. at 268.
DISCUSSION
Prior Kansas cases have held that inverse condemnation occurred when (1) there has been a physical taking of property, see, e.g., Ellis v. City of Kansas City, 225 Kan. 168, 589 P.2d 552 (1979); In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 582 P.2d 228 (1978); or (2) where access rights have been impinged, Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P.2d 771 (1977); and Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934 (1965); or (3) where rights to lateral support have been violated, Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 (1973).
The most similar case to the one before us is Sanders, a consolidated appeal from summary judgments entered in favor of the State Highway Commission in actions brought by homeowners whose properties adjoined the right-of-way of Interstate Highway 635 in Kansas City, Kansas. In Sanders, die homeowners discovered that large portions of their backyards had slid onto the right-of-way where excavation work was occurring on the adjacent right-of-way of 1-635. Where plaintiffs’ backyards had been, there remained a large hole or crevice.
Plaintiffs brought an action stating a tort claim and an inverse condemnation claim based upon removal of lateral support to the plaintiffs’ land. The district court granted the State’s motions for summary judgment. In doing so, it determined the State was protected from suits in tort and nuisance by governmental immunity and that plaintiffs stated no causes of action for inverse condemnation because they did not allege the State had appropriated their property by taking possession or control over it. Thus, any damages by taking were unintended. Sanders appealed.
The Sanders court noted that the State Highway Commission was acting in a governmental capacity when it was engaged in the establishment, construction, and maintenance of the state highway system (citing Kan. Const. art. 11, § 9; K.S.A. 68-406 et seq.). It observed that plaintiffs’ actions, based on tort and negligence, accrued in June 1969, when the damage occurred (citing Railroad Co. v. Schwake, 70 Kan. 141, 78 Pac. 431 [1904]). It noted that the effective date of the abolition of the rule of governmental immunity as applied to proprietary enterprises was August 30, 1969 (citing Carroll v. Kittle, 203 Kan. 841, 851, 457 P.2d 21 [1969]). The Sanders court concluded that the plaintiffs’ claims for tort and negligence, which had accrued in June 1969, were barred by the governmental immunity provisions of K.S.A. 1972 Supp. 46-901 et seq. (repealed L. 1979, ch. 186, § 33).
The Sanders court observed that inverse condemnation claims are recognized in Kansas. It stated that when land or rights therein are appropriated by a public corporation having rights of eminent domain without the public corporation first procuring title, the owner may waive formal condemnation proceedings and other formal modes of acquisition and sue to recover compensation. The owner may recover all damages sustained by reason of the permanent taking and appropriation of his or her property. 211 Kan. at 780.
The Sanders court then determined lateral support is a property right and that between adjacent landowners the common-law right to lateral support is absolute. If either adjacent landowner, in excavating on his or her own premises, disturbs the lateral support of his or her neighbor s land so that it falls away or slides from its position, the one excavating is strictly hable. Unless changed by contract or statute, the only proof necessary for plaintiffs to recover was that the excavating was a direct and proximate cause of the injury to the adjoining land. 211 Kan. at 783. The Sanders court concluded that the common-law right to lateral support of natural soil is a valuable right which accompanies the ownership and enjoyment of the land itself. It may not be taken while constructing highway improvements without acquisition and payment, the same as any other right or interest in real property. 211 Kan. at 786.
For additional authority that an action in inverse condemnation is proper, the Deishers cite Clay v. Missouri Highway and Transp. Com’n, 951 S.W.2d 617 (Mo. App. 1997). In Clay, property owners brought an inverse condemnation action against the Missouri Highway and Transportation Commission and a contractor hired by the Commission to perform work on a highway project, to recover for damage allegedly caused by blasting for the project. They alleged that blasting caused vibrations which created cracks in the aquifer, causing the water table in their well to drop and drastically reduce the water flow in their well. Prior to trial the plaintiffs attempted to amend their petition to include an additional claim for malicious trespass which permitted recovery of double or treble damages. The trial court denied the plaintiff’s request to amend the petition. The jury awarded plaintiffs damages against the Commission on a theory of inverse condemnation. The plaintiffs appealed, raising several issues, including the trial court’s refusal to submit to the jury a malicious trespass claim against the Commission.
The Clay court observed that under Missouri law a malicious trespass claim and inverse condemnation claim could have been brought as separate claims under Missouri law against the Commission in the petition. It found that the only claim alleged in plaintiffs’ petition against the Commission was for inverse condemnation. Then, discussing inverse condemnation, the Clay court cited Heins Implement v. Hwy. & Transp. Com’n., 859 S.W.2d 681 (Mo. 1993), where the Missouri Supreme Court held that when private property is damaged by a nuisance operated by an entity having the power of eminent domain, the proper remedy is an action in inverse condemnation. The Missouri court stated the fact that the nuisance is alleged to have been caused by the public entity’s negligence was immaterial. It found that inverse condemnation is the proper remedy whenever a condemning authority takes or damages private property for a public use without just compensation. Heins, 859 S.W.2d at 693; Clay, 951 S.W.2d at 627.
CONDEMNATION
Eminent domain, as a legal term and concept, apparently originated in the works of the seventeenth centuiy legal scholar Grotius. See Grotius, De Jure Belli ac Pacis Libri Tres, ch. 20, § VII, ¶ 1 (1625), cited in 1 Thayer, Cases on Constitutional Law, p. 945 (1895), and Nowak, Rotunda & Young, Constitutional Law, p. 438 (1978). It is sufficient to say eminent domain is the right and power of government or lawfully designated authority to take private property for public use without the owner’s consent upon payment of just compensation. The right is an inherent power of the sovereign and comes into being with the establishment of government and continues as long as the government endures. However, its exercise may be constitutionally limited.
The Fifth Amendment to the United States Constitution prohibits the taking of private property for public use without just compensation. The Fifth Amendment prohibition is applicable to the states by way of the Fourteenth Amendment. The constitutional prohibition against private property being taken for public use without compensation is codified in K.S.A. 26-513, which states:
“(a) Necessity. Private property shall not be taken or damaged for public use without just compensation.
“(b) Taking entire tract. If the entire tract of land or interest therein is taken, the measure of compensation is the value of the property or interest at the time of the taking.
“(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.
“(d) Factors to be considered. In ascertaining the amount of compensation and damages as above defined, the following factors, without restriction because of enumeration, shall be given consideration if shown to exist but they are not to be considered as separate items of damages, but are to be considered only as they affect the total compensation and damage under the provisions of subsections (b) and (c) of this section:
1. The most advantageous use to which the property is reasonably adaptable.
2. Access to the property remaining.
3. Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable.
4. Productivity, convenience, use to be made of the property taken, or use of the property remaining.
5. View, ventilation and light, to the extent that they are beneficial attributes to the use of which the remaining property is devoted or to which it is reasonably adaptable.
6. Severance or division of a tract, whether the severance is initial or is in aggravation of a previous severance; changes of grade and loss or impairment of access by means of underpass or overpass incidental to changing the character or design of an existing improvement being considered as in aggravation of a previous severance, if in connection with the taking of additional land and needed to make the change in the improvement.
7. Loss of trees and shrubbery to the extent that they affect the value of the land taken, and to the extent that their loss impairs the value of the land remaining.
8. Cost of new fences or loss of fences and the cost of replacing them with fences of like quality, to the extent that such loss affects the value of the property remaining.
9. Destruction of a legal nonconforming use.
10. Damage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land.
11. Proximity of new improvement to improvements remaining on condemnee’s land.
12. Loss of or damage to growing crops.
13. That the property could be or had been adapted to a use which was profitably carried on.
14. Cost of new drains or loss of drains and the cost of replacing them with drains of like quality, to the extent that such loss affects the value of the property remaining.
15. Cost of new private roads or passageways or loss of private roads or passageways and the cost of replacing them with private roads or passageways of like quality, to the extent that such loss affects the value of the property remaining.”
Inverse condemnation is an action to obtain compensation for the taking of private property by government which is initiated by the person having an interest in the private property rather than by the governmental entity. It is available when private property has actually been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness on the part of the taker to bring an action to acquire the property. In a condemnation or an inverse condemnation action, the question of whether there has been a compensable taking of property is a question of law for the trial court. See Hudson v. City of Shawnee, 246 Kan. 395, 403, 790 P.2d 933 (1990); Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, Syl. ¶ 7, 559 P.2d 347 (1977); Brock v. State Highway Commission, 195 Kan. at 366. A landowner may file an inverse condemnation claim within 15 years of the action accruing. K.S.A. 60-507. An appellate court’s review of questions of law is unlimited, and this court is not bound by the decision of the district court. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
If government imposes a restriction upon property which is too oppressive, so as to deny the owner the use, benefit, and enjoyment of the realty, it may be deemed to have taken the land and be obligated to pay compensation. We discussed general principles of the law relative to eminent domain and inverse condemnation in Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 671 P.2d 511 (1983).
The Lone Star court also recognized that before a party may recover compensation, it must establish that the property in question is one in which it has an interest and that there has been a taking. 234 Kan. at 125. This court has previously defined “take” (or “taken”) in Kansas eminent domain láw to mean the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides. See Steck v. City of Wichita, 179 Kan. 305, 313, 295 P.2d 1068 (1956); Foster v. City of Augusta, 165 Kan. 684, 690, 199 P.2d 779 (1948).
TORT LIABILITY
A tort is an action for injury to the rights of another, not arising on contract. See K.S.A. 60-513(a)(4). It has also been defined as a violation of a duty imposed by law. Mills v. City of Overland Park, 251 Kan. 434, Syl. ¶ 4, 837 P.2d 370 (1992). The provisions for governing the limitation of time for commencing civil actions are generally set out in K.S.A 60-501 et seq. The limitation for bringing an action for damage to land is governed by K.S.A. 60-513(a)(l), which requires that the action be brought within 2 years. Actions for damage to land are not deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the action accrues when the fact of injury becomes reasonably ascertainable to the injured party. In no event shall the action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. K.S.A. 60-513(b).
The parties failed to cite or discuss an action for damage to land governed by K.S.A. 60-513. A case having facts similar to those in this case is Olson v. State Highway Commission, 235 Kan. 20, 679 P.2d 167 (1984). In that case, J.A. Tobin Construction Company (Tobin), in its construction of a new highway, was conducting blasting operations approximately one-eighth of a mile from plaintiff Martha Olson’s new home. The blasting began in 1977 and continued until September 1979. In May or June 1978, a hairline crack was discovered in a wall of plaintiff’s basement. In March 1980, numerous large cracks were discovered in the foundation wall. On October 29,1980, Olson filed an action against Tobin and the State Highway Commission (now KDOT) for damages to her real property resulting from acts of negligence during the highway construction project. She alleged that damage to a pond on her property, damage to the foundation and cistern of her new house, and the destruction of fences along part of her land had not become reasonably ascertainable until 1980.
Defendants filed a motion for summary judgment, claiming the 2-year statute for filing negligent tort claims had expired prior to plaintiff filing the action. The district court granted defendants’ motion for summary judgment. Olson appealed, claiming her cause of action had not accrued until the act giving rise to the cause of action first caused substantial injury.
The Olson court stated that actions for permanent damages caused by negligence to land are governed by the 2-year period of limitations, which begins to run on the date the damage was sustained. K.S.A. 60-513(a)(4), (b). The Olson court observed K.S.A. 60-513(b) provides that a cause of action shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or until the time the fact of injury (inferentially, the fact of substantial injury) becomes reasonably ascertainable to the injured party. Olson, 235 Kan. at 26.
The Olson court noted that our statutes of limitation were not designed to force injured parties into court at the first sign of injury, regardless of how slight it might be, just because that injury and damages resulting therefrom may be permanent in nature. We have repeatedly held that where the evidence is in dispute as to when the fact of injury first became reasonably ascertainable to plaintiffs, it is an issue for determination by the trier of fact. George v. W-G Fertilizer, Inc., 205 Kan. 360, 366, 469 P.2d 459 (1970). The same is true in determining when substantial injury first occurred. Thierer v. Board of County Commissioners, 212 Kan. 571, 512 P.2d 343 (1973). In Olson, the district court’s grant of summary judgment was reversed, and the case was remanded for further proceedings.
Olson is analagous to this case. There, as here, property was damaged by a contractor while doing work for the State. The damages were not a necessary consequence of a taking. Instead, they resulted from the negligence of the State or one acting on behalf of the State.
Condemnation is the taking of property for public use. Inverse condemnation is an action brought by a party whose property is taken for public use without formal condemnation proceedings.
In this case, as in Olson, the property damage was not necessary to the taking of property for public use. The State neither needed the Deishers’ water nor needed to divert their water. The drop in plaintiffs’ water level resulted from a tortious act. Consequently, the district court correctly concluded both that the Deishers’ remedy lay in tort, not in inverse condemnation and that plaintiffs’ injury was reasonably ascertainable more than 2 years prior to the time they filed the action; thus, the statute of limitations had run.
Affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the judgment, order, decision and other rulings pertaining to the amount of an award of child support and from the order overruling plaintiff’s motion for new trial in an action brought by a son against his father to enforce the father’s nonstatutory duty to support the son.
We are first met with a motion of defendant attacking plaintiff’s right to be heard in this appeal for failure to .comply with G. S. 1949, 60-3311 and rule 5 of this court regarding the transcript and abstract respectively. Examination of the record reveals no omission or affirmative showing that defendant’s rights were prejudiced thereby and the motion is, therefore, overruled.
In Wahl v. Walsh, 180 Kan. 313, 304 P. 2d 525, we held that “the father of an illegitimate child too young to care for itself is under a nonstatutory obligation to support it, which may be enforced in an action brought by it through its next friend.” (Syl. ¶ 1.)
We do not deem it necessary to go into detail with respect to the evidence in this case. The stipulations of the parties show the defendant to be a wealthy man and the oral testimony of the mother shows expenses of the plaintiff child. This evidence was before the trial court when it made its order allowing $150.00 per month child support.
The trial court made several findings of fact but we are here concerned only with finding No. 8 and that part of the judgment entered thereon, together with that part of the judgment fixing the amount of child support at $150.00 per month.
Plaintiff raises three questions. The first is whether the trial court erred in considering a contract entered into between the parents of plaintiff as well as a judgment of the Stanton county district court in an action to detrmine the rights of the parents under the contract. From remarks of the trial court, as reflected in the record, we find no support for plaintiff’s contention of error in this regard and we, therefore, hold the trial court should be affirmed on this point.
The second question presented is whether the trial court erred in awarding a minor son of a wealthy father the sum of $150.00 per month in view of plaintiff’s needs and the father’s financial worth.
The Wahl case, supra, reflects the attitude of our Kansas courts that the fact a child is illegitimate has not effect on the amount to be allowed in a child support order. Once the trial court takes jurisdiction of a case where a father and son relationship has been held to exist, the rules of law apply the same as in any other father and son relationship. The question of the relationship of this father and son was determined by the trial court and no appeal has been taken therefrom.
The portals of the trial court are always open to the parties in child support cases, as further exigencies may demand, because the trial court retains jurisdiction of its orders and may at any time modify them to meet the best interests and welfare of the child. (Goodman v. Goodman, 188 Kan. 41, 45, 360 P. 2d 877.) In the Goodman case the appealing party, as here,. sought to have this court make findings of fact different from those of the trial court and this, of course, an appellate court is not permitted to do.
The third and final question is whether the trial court erred in placing the management, control, and disbursement of funds granted plaintiff herein, a minor, in the hands of others than the minor’s mother. The mother’s testimony, as narrated in the record before us, is sufficient to show she has some rather unusual ideas with respect to plaintiff’s needs such as his taking boxing lessons when he has an asthmatic condition. We are aware the trial court had the opportunity to see the witnesses and to determine their candor and apparent motive in giving their testimony and while this case presented a very difficult situation for the trial court, unless a clear abuse of discretion is shown, which it is not, we will not disturb its determination.
On the questions raised we are unable to find any error on the part of the trial court. It is hereby directed that someone be appointed to whom the child support payments can bé made and disbursed for the benefit of plaintiff and it is further directed that the costs be charged against and paid by the defendant.
The judgment is affirmed. | [
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Per Curiam:
This appeal is from a judgment assessing damages on a temporary injunction bond.
The same issues of fact and legal questions were before this court in City of Wichita v. Krauss, 190 Kan. 635, 378 P. 2d 75. The opinion and decision in that case controls the decision in the present case.
The judgment of the district court is reversed. | [
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