Kansas criminal Case Law update 2017 Jacob Gontesky September 28, 2017

Kansas case law 2017 Waiver of jury trial DUI Refusal Statute (RIP) Other upcoming appellate issues Aside: Making a record ahead of a 1507

Waiver of jury trial State v. Stamps, No. 114,662, 2017 WL 543450, rev. denied Aug 24, 2017 (unpublished) Diversion agreement for criminal non-support (Stay agreement) Violated diversion and was convicted at bench trial Issue: Whether, in division, defendant must told of his right to a jury trial personally by the judge before that can be waived in the written agreement Held: Notification of right also applies to those entering diversion agreements. A written waiver alone, even when signed by defense counsel, is not sufficient.

Waiver of jury trial (cont) Tush v. State, No. 114,662, 2017 WL 543450, rev. denied Aug 24, 2017 (unpublished) District court judge said “You understand you have that right [to a jury trial] and you can give it up if you want and your attorney indicates you want to do that . . .” Held: Sufficient precursor to an effective waiver See also State v. McDonald, No. 114,957, 2017 WL 2712956 No requirement that defendant be advised of every aspect of jury trial (12 jurors, unanimous verdict, burden on the state, etc. . . )

Waiver of jury trial (cont) State v. Thomas, No. 114,934, 2017 WL 1104758 (unpublished) Defendant waived jury trial on the record, but not specifically pertaining to upward durational departure. COA reversed; defendant must be advised specifically advised of right pertaining to the departure factors. Defendant sought to be resentenced w/out departure COA: Prohibiting departure is not the appropriate remedy. Remand for JT on departure

Prosecutorial error State v. Sherman, 305 Kan. 88 (Sept. 9, 2016) The term “Prosecutorial Error” no longer utilized in criminal context “Prosecutorial Misconduct” reserved for disciplinary hearing.

Prosecutorial error (cont) State v. Sherman, 305 Kan. 88 (Sept. 9, 2016) 1. Did act fall outside of wide latitude afforded prosecutors? Attempt to obtain a conviction in a manner that offended defendant’s constitutional right to fair trial? 2. If error, did it prejudice the defendant? State must prove beyond a reasonable doubt error did not affect the outcome of the trial in light of the entire record.

Immunity: self-defense State v. Hardy, 305 Kan. 1001, 390 P.3d 30 (2017) State’s appeal re: self-defense immunity law. Issue: Trial court procedure in examining self-defense immunity claims Held: Upon a motion under K.S.A. 21-5231, district court must consider totality of circumstances. Evidence must be reviewed without deference to the state. State has burden to establish PC that defendant’s use of force was not justified.

Dui refusal statute (RIP) State v. Ryce, No. 111,698, 396 P.3d 711 (2017) Constitutionality of K.S.A. 8-1025 Facially unconstitutional. Statute, on its face, punishes the withdraw of consent. Punishing the act of refusal of a lawful test request is constitutionally permissible, but punishing the withdrawal of consent is not.

Dui refusal statute (RIP) State v. Nece, No. 111,401, 396 P.3d 709 (2017) Whether informed consent advisory made consent unknowing/unvoluntary. Held: Given unconstitutionality of 8-1025, telling drivers they “may be charged with separate crime for refusing . . .” is inaccurate. Given the inaccuracy, a suspect’s consent is not freely and voluntarily given.

LOOKING AHEAD: Scoring of out-of-state convictions: Particularly Missouri burglary convictions: Person or nonperson Identity Theft & Employment: State convictions preempted by federal immigration law? Headed to United States Supreme Court

Aside: Getting ahead of a 1507: How does district court review a 1507? Three options: Record/Transcripts may show no relief is justified; court may summarily deny claim. Potential substantial issue of fact is raised; preliminary hearing on the issue may be justified. Substantial issue is presented justifying full evidentiary hearing in the presence of the petitioner.

Aside: Getting ahead of a 1507: What can be done to cut the claim off at the first pass? Make clear records! Discussing discovery Discussing exposure and potential sentences Right to call witnesses Right to testify or not Mediation & negotiation Final plea offers