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Kansas Supreme Court Selected Opinion Summaries - January 23, 1998

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.

The Supreme Court today filed 39 opinions. Today's filings include:

Appeal No. 77,657: State v. George Bailey

The court, in a unanimous decision authored by Justice Donald L. Allegrucci, affirms the defendant's Sedgwick County conviction of second degree murder, but remands the case for resentencing without a departure from the Kansas Sentencing Guidelines Act.

Appeal No. 77,122: State v. Manuel D. Martinez

The court, in a non-precedent setting decision, affirms a Sedgwick County District Court ruling that cuts and bruises inflicted on a 12-year old by his father with a belt did not rise to the level of felony child abuse, rejecting an appeal by the state.

Appeal No. 75,258: State v. Solly M. Thompkins

The court, in a 4-3 decision, orders a new trial of a Kansas City, KS, man's first-degree murder conviction, which arose from the stabbing death of his wife, Frances, during a heated argument in her car in October 1994. She was stabbed with a knife during the altercation. A majority of the court led by Justice Tyler C. Lockett held that the defendant's due process rights were violated when he stood trial charged with felony first-degree murder, and the judge after the evidence allowed the jury to find premeditated first-degree murder. Justice Lockett was joined by Justices Bob Abbott, Donald L. Allegrucci, and Edward Larson. Dissenting were Chief Justice Kay McFarland and Justices Fred N. Six and Robert E. Davis. Justice Six, writing for the minority, noted that the defense did not object to the instruction on premeditated murder until after the jury verdict.

Appeal No. 78,001: State v. David M. Spain

The court, in a unanimous decision authored by Justice Donald L. Allegrucci, remands Spain's Haskell County sentence of life with no parole for 40 years, for resentencing. Upon resentencing, the court is directing the trial court to weigh one aggravating circumstance against one mitigating circumstance after the justices determined one of the aggravating circumstances used at his first sentencing was incorrectly applied.

Appeal No. 79,284: Anthony A. Cure and Emmett D. Aistrup v. Board of County Commissioners of Hodgeman County, Kansas

The court, in a unanimous decision authored by Justice Donald L. Allegrucci, affirms a Hodgeman District Court court decision affirming the results of a referendum conducted April 1, 1997, defeating a proposal to permit corporate hog production facilities in the county by 22 votes.

Appeal No. 76,989: State v. Jeffrey S. Collier

The court, for the second time, reverses a Sedgwick County decision sentencing Collier to the so-called "hard 40" because of the state's failure to properly file its notice to seek the sentence at the time of arraignment as required by Kansas statutes. The Supreme Court had made the determination earlier and remanded the case to the trial court for resentencing without the hard 40; however, on remand the trial court imposed the same sentence. (A second sentence of 97 months for aggravated robbery remains in place and is unaffected by the latest remand.)

Docket No. 75,592: In Re: Wendell Betts

The court orders a three-year probationary period for a Topeka attorney's law license based upon multiple violations of the Model Rules of Professional Conduct with a caution that failure to abide by any of the terms of the probationary order "will be dealt with swiftly and severely."

Docket No. 73,450: In Re: Fred H. Brown

The court disbars a former Wichita attorney who has felony convictions resulting from his trial in Nebraska for conspiracy and possession of cocaine with intent to distribute. (He has been temporarily suspended from practice since March 1994 due to a prison sentence that was imposed that year.)

Docket No. 78,950: In Re: Marcus B. Potter Jr.

The court orders public censure of a Kansas City, KS, attorney based upon his handling of an insurance settlement. Justice Fred N. Six, in a concurring and dissenting opinion, would have suspended Potter from the practice of law for one year.

Being held over for decision later are:

Appeal No. 75,862: State v. Davidson
Appeal No. 77,097: State v. Smallwood
Appeal No. 77,231: Fisher v. State Farm
Appeal No. 77,636: Saliba v. UPRR
Appeal No. 74,415: State v. Hardyway
Appeal No. 73,410: In Re: Wendell Betts
Appeal No. 77,848: Adams v. St. Francis
Appeal No. 76,192: Brumley v. Lee
Appeal No. 75,174: Spencer v. State
Appeal No. 78,548: CURB v. KCC
Appeal No. 75,375: State v. Sheryl M. Lewis
Appeal No. 76,573: Hamilton v. State Farm
Appeal No. 77,966: State v. Edwards
Appeal No. 78,055: Miami v. Svoboda
Appeal No. 79,214: State v. McCown
Appeal No. 73,468: In Re: John R. Miller
Appeal No. 74,112: In Re: Kenneth M. Hay
Appeal No. 73,344: Cox v. Lesko