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Kansas Supreme Court Selected Opinion Summaries - June 1, 2001

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. The full text of these decisions may be found at www.kscourts.org. Today's filings include:

Appeal No. 84,813: State v. Chester L. Higgenbotham

The court, in a unanimous decision authored by Justice Robert E. Davis, affirms the defendant's Harvey County conviction of the first-degree premeditated murder of Rhonda Krehbiel in Newton, rejecting his contention that the trial court erred in admitting evidence of another murder he committed and by refusing to change the venue based on pretrial publicity.

Appeal No. 82,430: State v. David Zabrinas

The defendant's conviction of sexual exploitation of a child, which resulted from his use of the Internet to download pornographic pictures of children, is upheld. The constitutionality of the child exploitation statute also is upheld. However, his sentence of 256 months imprisonment is remanded to the Saline County District Court for re-sentencing because it was enhanced based on the same prior convictions that were used to calculate both the severity level and his status as a persistent sex offender, which is not authorized by Kansas statutes. (Unanimous authored by Justice Edward Larson, affirming the conviction, but remanding for re-sentencing.)

Appeal No. 84,583: State v. Vernon J. Amos

The court, in a unanimous decision authored by Justice Tyler C. Lockett, affirms the defendant's Wyandotte County conviction of first-degree murder, rejecting his contentions that he should have been charged as an aider and abetter, that there was insufficient evidence to sustain the conviction, and that an instruction on the lesser included offense of second-degree intentional murder should have been given.

Appeal No. 83,716: State v. Gentry E. Bolton

Citing the 1986 U.S. Supreme Court case of Batson v. Kentucky, the court remands a Wyandotte County first-degree murder and aggravated robbery case for a hearing on whether the prosecutor had race neutral reasons for exercising peremptory challenges of six black prospective jurors. (Unanimous authored by Justice Tyler C. Lockett.)

Appeal No. 83,388: State v. Edrick L. McCarty

The court, in a unanimous decision authored by Justice Edward Larson, affirms the defendant's Sedgwick County convictions of first-degree murder and attempted aggravated robbery, rejecting his challenges of the admission of evidence concerning his house arrest status, the admission of testimony from witnesses who had reached plea agreements for their testimony, the admission of opinion testimony concerning the number of officers at the crime scene, the trial court's response to jury questions, the trial court's allowing the jury to use string during its deliberations, and the sufficiency of the evidence.

Appeal No. 83,480: State v. Daniel Ramos

The court affirms the defendant's Wyandotte County first-degree murder and related charges arising from a drive-by shooting that resulted in the death of a woman who was shot from outside of her home as she sat watching television. (Unanimous authored by Justice Fred N. Six, denying defendant's claims that his statements to police should have been suppressed, in imposing consecutive sentences, and in permitting the prosecutor's closing arguments.)

Appeal No. 83,341: State v. Daniel Medrano

The court, in a unanimous decision authored by Justice Bob Abbott, affirms a Sedgwick County decision certifying him to stand trial as an adult on charges of first-degree murder, two counts of attempted first-degree murder, and criminal discharge to a firearm. (He pled guilty to the offenses following the certification.)

Appeal No. 84,278: State v. James A. Penn Jr.

Penn's Sedgwick County convictions of felony murder, two counts of attempted aggravated robbery, one count of aggravated assault, and one count of criminal possession of a firearm, including his sentence of life plus 192 months, are affirmed. Unanimous decision arising from the February 1999 shooting death of Patrick Schoenhofer authored for the court by Justice Donald Allegrucci rejecting Penn's challenge of the sufficiency of the evidence.

Appeal No. 83,168: Bigs et al. v. City of Wichita

The court, in a unanimous decision authored by Justice Donald Allegrucci, affirms a Sedgwick County decision entitling Wichita private clubs and drinking establishments refunds of license fees that were in excess of a $250 statutory limit until the city changed its licensing ordinance to comply with the state cap.

Appeal No. 84,029: State v. William D. Albright

The court, in a unanimous decision authored by Justice Fred N. Six, affirms Albright's Kingman County premeditated first-degree murder conviction, holding that the trial court did not abuse its discretion by limiting cross-examination of a prosecution witness, err in refusing the defendant's request for an instruction on the lesser-included offense of second-degree murder, abuses its discretion in admitting expert testimony; err in denying a motion for mistrial, error in denying a motion for a new trial based upon sufficiency of the evidence, or err in imposing the hard 40 sentence.

Appeal No. 83,276: State v. Todd Miller Deal

Deal's premeditated first-degree murder conviction arising from the August 1998 death of Aubrey Phalp, whose body was found when it surfaced along the shore of Hillsdale Lake in Miami County, is affirmed. Four-three decision, rejecting complaints of the admission of a videotape interview of a witness, of a videotape of the defendant declining to take a polygraph exam, of the admission of a gruesome photograph, of the trial court's refusal to give an instruction on aiding a felon, of admitting a videotape of an interview he gave police, of admitting evidence of statements made by the decedent to her father, and of the admission of evidence about prior incidents of misconduct. Writing for the majority is Justice Bob Abbott. A dissent by Justice Donald Allegrucci, who would grant a new trial based upon the reference to the polygraph exam, is joined by Justices Tyler C. Lockett and Fred N. Six.

Docket No. 86,416: In Re: Marlin Johanning

The court orders published censure of an Atchison attorney based upon several violations of the Kansas Rules of Professional Conduct arising from his representation of a Missouri couple in their dispute with the city of Savannah, MO.

Docket No. 86,527: In Re: John B. Rishel III

The court orders indefinite suspension of a Kansas licensed attorney whose last registered address is in Tucson, AZ, based upon disciplinary proceedings undertaken in Colorado, as well as violations occurring in Kansas. (He failed to respond to notices of the Kansas disciplinary proceedings.)

Being held over for decision later are:

Appeal No. 84,258: State v. Lessley
Appeal No. 84,292: Nold v. Binyon
Appeal No. 82,923: State v. Coleman
Appeal No. 83,691: State v. Smith
Appeal No. 79,948: State v. Garcia
Appeal No. 82,678: State v. Robbins
Appeal No. 84,171: Unrau v. Kidron Bethel Ret. Serv.
Appeal No. 81,804: State v. Plaskett
Appeal No. 83,302: Moore v. Bird Engineering
Appeal No. 84,488: Shelton v. Dewitte
Appeal No. 84,076: Smith v. Amoco
Appeal No. 80,920: State v. Kleypas
Appeal No. 84,835: Mitchell v. Liberty Mutual
Appeal Nos. 83,293, 83,411, 83,605: Halley v. Barnabe
Appeal No. 83,338: Conelly v. State
Appeal No. 85,352: Ward v. Ward