KANSAS COURT OF APPEALS

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KANSAS SUPREME COURT

STATE V. CLAERHOUT, NO. 115227, ADMISSIBILITY OF PRIOR DUI CONVICTIONS FOR KNOWLEDGE IS IN LINE WITH THE TENTH CIRCUIT.

1. Evidence of a prior diversion agreement for driving while intoxicated may be relevant to establishing that a defendant was on notice that driving while intoxicated is dangerous.

2. The admissibility of evidence under K.S.A. 60-455 is subject to harmless error analysis on appeal.

3. It is not necessary that an expert witness demonstrate expertise in every theory, principle, or scientific discipline underlying the knowledge, skill, experience, training, or education that may qualify an expert witness to give testimony.

4. Voluntary intoxication is not a defense to reckless second-degree murder.

STATE V. FOX, NO. 115247, AFFIRMED.

1. The one-year statute of limitations for moving to withdraw a plea in K.S.A. 2018 Supp. 22-3210(e)(1) begins to run for preexisting claims on the date the amended statute became effective, April 16, 2009. A motion filed after the statute of limitations has expired may be granted only if the movant establishes excusable neglect.

2. An appellate court generally reviews the denial of a postsentence motion to withdraw a guilty plea for an abuse of discretion.

STATE V. CARPENTER, NO. 115713, AFFIRMED.

Based on State v. Brook, 309 Kan. 780 (2019).  The length of postrelease supervision depends on the category and the date of their commission rather than by sentences of probation versus prison under K.S.A. 22-3717(d)(1)(D) & (G).

1. K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime committed on or after July 1, 2006. There are no persons convicted of a sexually violent crime on or after July 1, 2006, to whom both subsection K.S.A. 22-3717(d)(1)(A) and subsection (d)(1)(G) apply.

2. Construing the statute as a whole and giving effect to all of the subsections, there is no conflict or ambiguity in K.S.A. 22-3717(d)(1).

STATE V. PRUITT, NO. 118448, AFFIRMED.

1. Prosecutor's statement in summing up testimony about alleged murder weapon, "This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point," was an impermissible personal opinion; but it does not require reversal of the defendant's premeditated first-degree murder conviction.

2. Prosecutor's statement that the victim deserved jurors' "consideration" was not error, when the context of the statement demonstrates that the prosecutor was not attempting to invoke the jury's sympathy.

3. Prosecutor's statement, "Folks, if you're convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged," was not an impermissible misstatement of the law because it forbade jury nullification.

4. Even if the district judge's failure to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter in this case is assumed to be error, the error is not reversible under a clear error standard, when there was overwhelming evidence that whoever shot the victim to death did so by firing a shotgun loaded with triple-aught buck from close range after lying in wait for about 10 minutes, and strong evidence demonstrates that the person who shot the victim was the defendant.

5. A district judge's instructions to the jury, (a) "Such law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be"; (b) "At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict"; and (c) "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them," are correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019). They do not direct a verdict of conviction or prevent a jury from exercising its power of nullification.

6. The district judge in this case did not abuse his discretion in finding that no fundamental failure due to jury misconduct occurred in the trial of the defendant's case. The judge was able to observe the defendant's daughter, who testified about observing a juror sleeping, and evidently made a negative credibility judgment. The judge also made a careful record of other, unrelated trial participants' recollections, including his court reporter's and his own; and those recollections did not match that of the defendant's daughter.

7. Defendant is not entitled to reversal of his conviction under the cumulative error doctrine.