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Kansas Supreme Court Selected Opinion Summaries - April 21, 2000

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 37 opinions. Today's filings include:

Appeal No. 81,808: State v. Michael D. Jorrick

The court, in a unanimous decision authored by Justice Bob Abbott, affirms the defendant's Mitchell County convictions of first-degree murder, which arose from the shooting death of Michael Keezer, who was shot while in his pickup truck on a county road. The court rejected appellant's contentions that there was insufficient evidence, that a change of venue should have been granted, that individual voir dire of jurors should have been allowed, that statements to law enforcement should have been suppressed, that a request for a complete read-back of his testimony should have been allowed, and that an instruction on diminished capacity should have been given.

Appeal No. 80,881: State v. Larry D. Wilkins

The court, in a unanimous decision authored by Justice Robert E. Davis, affirms the defendant's Wyandotte County first-degree murder conviction, which arose from the drive-by shooting death of Frederick Estes, rejecting the defendant's claims that the state failed to disclose its deal with a key prosecution witness and the state's alleged implication through cross-examination that the key prosecution witness had been intimidated by the defendant.

Appeal No. 81,438: State v. David M. Spain

The court, in a unanimous decision authored by Justice Donald Allegrucci, affirms the defendant's Haskell County hard 40 sentence, which was re-imposed after the Supreme Court in an earlier decision vacated it upon determining one of the aggravating factors involved in the case did not apply. In this appeal, the court rejected the appellant's challenge of the constitutionality of the hard 40 sentence and held that the trial court's weighing of the aggravating and mitigating circumstances will not be overturned absent an abuse of discretion.

Appeal No. 83,619: Michael W. McKernan v. General Motors Acceptance Corporation

A Kansas firefighter is not barred from prosecuting a products liability claim against a defendant whose product exploded during the course of a car fire, but which was not the cause of the fire in which the firefighter was injured, under a decision authored by Justice Tyler C. Lockett answering a question certified from the U.S. District Court. (A gas filled hood strut on a car exploded and injured a Wichita firefighter called to extinguish the blaze.). Writing a separate concurring and dissenting opinion was Justice Fred N. Six.

Appeal No. 81,679: State v. Jose J. Chavez

The court, in a unanimous decision authored by Justice Robert E. Davis, affirms the defendant's Sedgwick County first-degree murder conviction in which he unsuccessfully claimed there was insufficient evidence to support the verdict. The conviction arose from the discovery of the body of Omar Escobar in a ditch by a jogger in rural Sedgwick County.

Appeal No. 81,584: State v. David A. Moncla

The court, in a unanimous decision authored by Justice Robert E. Davis, remands a Sedgwick County first-degree murder case for further proceedings in determining whether a new trial should be ordered based upon alleged newly discovered evidence. The Supreme Court determined that the trial judge improperly determined the motion for a new trial by failing to evaluate the credibility and materiality of the paper evidence that was claimed to be new and in not making findings of fact and conclusions of law.

Appeal No. 82,180: State v. Albert Dale Williams

The court unanimously affirms the defendant's Riley County felony-murder conviction and resulting sentence of life imprisonment, which arose from the 1978 murder of Pamela Parker at the Manhattan Chamber of Commerce, rejecting his contention that he should be released because a pair of pants that was evidence in the case was no longer available for DNA testing.

Appeal No. 82,041: State v. Thomas Hernandez

The court affirms the defendant's Wyandotte County convictions of second-degree murder and criminal deprivation of property, which arose from September 1997 death of Raymond Vasquez, rejecting the appellant's contentions that a statement he gave police should not have been admitted into evidence and that a motion for a mistrial prompted by the testimony of a police detective should have been granted.

Appeal No. 82,007: State v. Gregory A. Struzik

The court, in a unanimous decision authored by Justice Tyler C. Lockett, affirms the defendant's Ford County first-degree murder conviction based on felony abuse of a child, rejecting his claims of insufficient evidence, improper testimony by the expert witnesses, an improper jury instruction regarding jury deadlock, failure to instruct on lesser included offenses, and the cumulative effects of alleged trial errors.

Appeal No. 81,959: State v. Reed J. Simkins

The court, in a unanimous decision authored by Justice Robert E. Davis, affirms the defendant's Rice County convictions of first-degree murder and battery, which arose from the September 1997 shotgun death of Larry Bornholdt, 68. The court found the trial court was correct in refusing to instruct on the lesser included offense of voluntary manslaughter, in joining the murder and battery charges for one trial and admitting evidence of a prior battery and the trial court's instruction on the presumption of intent.

Docket No. 84,214: In Re: Donald J. Francis

The court imposes a two-year probationary period for a Gardner attorney based upon his handling of an automobile negligence case, which was dismissed after he failed to prosecute the case and never notified his client.

Docket No. 83,684: In Re: Kimberley K. Kellogg

The court places a Leawood attorney on two years probation as a result of ethical violations arising from her handling of three divorce matters, a traffic infraction, and a fraudulent prescription case.

Docket No. 84,189: In Re: Howard David Shaver

The court imposes indefinite suspension of a Leawood attorney's law license based upon his guilty plea to filing a false federal individual income tax return.

Docket No. 84,188: In Re: Tomas J. Leising

The court imposes indefinite suspension of a Topeka attorney's law license based upon his improper expenditures of a mentally dependent adult ward of the court.

Being held over for decision later are:

Appeal No. 83,505: USD 501 v. Baker
Appeal No. 83,130: KPERs v. Russell et al.
Appeal No. 81,491: In Re: 18th Judicial District
Appeal No. 82,273: In Re: Appl. of Nina Kaul
Appeal No. 83,004: In Re: Arabia
Appeal No. 81,251: Excel Corp. v. Jimenez
Appeal No. 82,611: Wilkinson v. Shoney's