TOPEKA—A three-judge panel of the state Court of Appeals will convene in Colby, Tuesday, October 18, to hear arguments in eight appeals.
The hearing panel includes Judges Stephen D. Hill, G. Joseph Pierron, Jr., and John J. Bukaty, Jr. In addition to the cases argued in Colby, the panel also will decide the outcome of 19 other appeals that have been submitted for decision without oral argument.
The 13-member Court sits throughout the state in panels of three, and last year resolved 1,700 appeals. Following are digests of the appeals to be argued in Colby:
Tuesday, October 18, 2011 – 9:00 a.m.
Case No. 104,183: State v. Robert Lane Yost
Finney County: A jury found Robert Lane Yost guilty of attempted rape, aggravated burglary, battery on a law enforcement officer, battery, three counts of obstruction, and three counts of criminal threat. On appeal, Yost challenges the district court's rulings on several issues, including instructional error, the denial of a motion for a new trial, and a sentencing error.
ISSUES: 1) Was it clearly erroneous for the district court to not instruct the jury on the defense of voluntary intoxication for the charges of aggravated burglary and criminal threat? 2) Did the district court err in denying Yost's motion for a new trial based on a claim of ineffective assistance of counsel? 3) Did the district court err in sentencing Yost to the aggravated sentence within the grid box? 4) Did cumulative errors deny Yost a fair trial?
Case No. 105,033: Adelina Garcia v. Michael Anderson, Charles Doull, Garden City Police
Finney County: Garcia was pulled over for a defective taillight. Because of a miscommunication of Garcia's driver's license number, she was searched, handcuffed, and put in the patrol car. After officer's discovered the error, Garcia was released and allowed to leave. Garcia filed a racial profiling complaint with the Kansas Human Rights Commission and then a civil cause of action in district court. The district court dismissed Garcia's claim because she failed to give notice under the Kansas Tort Claims Act.
ISSUES: 1) Do the notice requirements under the Kansas Tort Claims Act apply to a civil petition filed under the Kansas statutes prohibiting racial profiling? 2) Did Garcia substantially comply with the notice provisions of the Kansas Tort Claims Act?
Case No. 105,336: State of Kansas v. Gustavo Escobedo
Grant County: In November 2001, after waiving his right to an attorney, Gustavo Escobedo pled guilty to misdemeanor battery and was placed on unsupervised probation for 6 months. In December 2009, Escobedo filed a "motion to modify sentencing" in which he alleged that he was not told at the 2001 sentencing that he had 10 days to file a notice of appeal. Escobedo requested in his motion that he now be able to file a late notice of appeal in order to challenge the 2001 conviction. The district magistrate judge who had presided over Escobedo's 2001 plea and sentencing hearing denied the motion, and Escobedo appealed the decision to district court. Before the district court, Escobedo again argued that he should be allowed to appeal his 2001 conviction because he was not informed at sentencing that he had 10 days in which to file a notice of appeal. With regard to the substantive argument that he would be raising on appeal, Escobedo claimed that the 2001 conviction was not valid because there was no indication in the record that the interpreter who assisted him during the 2001 proceedings was qualified to act as an interpreter. The district court denied Escobedo's motion, and Escobedo now challenges the district court's decision on appeal.
ISSUES: 1) Did the district court err when it denied Escobedo's request to file a late notice appeal that was contained in his motion to modify sentencing? 2) If Escobedo is allowed to file a late notice of appeal, should his 2001 conviction be overturned due to a lack of evidence contained in the record showing that the interpreter who assisted him during the 2001 proceedings was qualified to act as an interpreter?
Case No. 105,174: State v. Heladio Chairez-Hernandez
Finney County: After an argument between Heladio Chairez-Hernandez and Samara Salas, the mother of Chairez-Hernandez' children, Chairez-Hernandez was arrested and charged with aggravated robbery. At a preliminary hearing on the charge, an officer who responded to the scene testified that Salas told him Heladio hit her and took her paycheck. However, Salas testified that Heladio did not take her check and that she gave it to him voluntarily. When another officer was asked about statements the parties' children apparently made to him at the scene, defense counsel objected on the basis of hearsay and a violation of the Confrontation Clause of the Constitution. The district court excluded the evidence based on the Confrontation Clause. The district court ultimately found insufficient evidence to establish probable cause that an aggravated robbery occurred, reasoning the court did not know which witness was telling the truth, and the charge was ultimately dismissed.
ISSUES: 1) Did the district court err in finding insufficient evidence of aggravated robbery and refusing to bind Heladio over on aggravated robbery where the district court did not know whose testimony to believe? 2) Did the district court abuse its discretion in excluding evidence of the children's statements based on the Confrontation Clause?
Tuesday, October 18, 2011 – 1:30 p.m.
Case No. 105,328: State of Kansas v. Brian Dale Montgomery
Ford County: After killing his neighbor's Chihuahua by shooting it with an arrow, Brian Dale Montgomery was charged with cruelty to animals (defined as intentionally and maliciously killing any animal). The case proceeded to a preliminary hearing where the evidence established that when Montgomery shot the Chihuahua, the dog was in Montgomery's backyard and was biting his 12 year-old black lab. Based on this evidence, the district court found that Montgomery's act of shooting the Chihuahua with an arrow did not constitute cruelty to animals due to statutory language which states the cruelty to animals statute does not apply to "the killing of any animal by any person at any time which may be found outside of the owned or rented property of the owner or custodian of such animal and which is found injuring or posing a threat to any person, farm animal or property." Accordingly, the district court dismissed the case against Montgomery, and the State now brings this appeal.
ISSUES: 1) Did the district court err in concluding as a matter of law that Montgomery's act of shooting the Chihuahua with an arrow was justified under the law? 2) Should a "reasonableness" standard be applied to the statute to determine whether the killing of a particular animal was justified or constituted animal cruelty?