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Kansas Supreme Court Selected Opinion Summaries
State v. Cheek, Docket 75,381
April 18, 1997

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 75,381: State v. Cheek

Saying a juror was improperly excused from duty during jury deliberations, the Supreme Court today ordered a new trial for a former Kansas City, KS, police officer who was convicted of murder in the shooting death of Milton Foster, a security guard who was working at a Bonner Springs restaurant and bar.

John E. Cheek, who was off-duty the night of the shooting, October 29, 1994, also was convicted of aggravated assault upon Rusty Moretine, who testified that Cheek threatened him with a gun prior to shooting Foster. The defense contended Cheek was attempting to make an arrest after Foster attacked him and his brother in the parking lot of Ziffels Restaurant and Bar.

The Supreme Court, in a unanimous decision authored by Justice Edward Larson, held that the dismissal of a juror after an hour and a half of jury deliberations constituted reversible error.

"This transcript reveals the dismissal of a juror who suffered from no impairment, who appeared to hold a different view of the case from the remaining jurors, who believed his convictions could not be changed, and who had been on the verge of being sent back to deliberate when he was, without reasonable cause, discharged from further service," Justice Larson wrote for the court.

"The juror was not ill, incapacitated, or affected by personal reasons; he had no problems with the high visibility of the case; and he clearly stated that if he remained on the jury, he did not believe a decision could be reached. There is a total absence of any justifiable reason or the dismissal," he wrote. "In the wording of our case law, there was no reasonable cause for [the juror] to be released and an alternate juror to be seated."

The court said the juror should have been returned to the jury for further deliberations.

No date for a new trial has been set.