Kansas Criminal Cases 1/10/20: New Law for Foundation of Audio Recordings



1. An appellate court should consider a case that would otherwise be moot if it (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition.

2. A contempt finding for failure to testify in a case that is subsequently dismissed without prejudice is an issue subject to repetition in light of the fact that the case may be refiled and the witness again required to testify.

3. To present a compulsion defense, just like any other defense, there must be evidence to support it. And if the district court refuses to allow the introduction of a litigant's evidence related to the defense, the litigant must make a proffer of the evidence to preserve the issue on appeal. 2

4. A judge has no independent responsibility to seek out evidence of duress from a recalcitrant witness. The witness has the affirmative duty to inform the appropriate authorities and the court of any threats.


Held: K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider a State's appeal solely on the claim that a sentence is illegal.  Instead, for an appellate court to have jurisdiction, the case must originate from one of the limited procedural postures articulated in K.S.A. 22-3602.

1. Under Kansas law, the right to appeal is entirely statutory. Thus, appellate courts do not have discretionary power to entertain appeals from all district court orders. Rather, the contours of appellate jurisdiction are defined by statute.

2. Appellate courts only have jurisdiction to hear an appeal by the State if it is taken within the time limitations and in the manner prescribed by the statutes defining appellate jurisdiction.

3. K.S.A. 60-2101 is the starting point for the inquiry into appellate jurisdiction in both civil and criminal cases. K.S.A. 60-2101(a) dictates that "[a]ppeals from the district court to the court of appeals in criminal cases shall be subject to the provisions of K.S.A. 22-3601 and 22-3602." 2

4. K.S.A. 22-3602 distinguishes between the appellate rights of defendants and the prosecution. While a criminal defendant has a broad right of appellate review, the State only has a limited right to appeal tightly restricted by statute.

5. Jurisdiction defines an appellate court's authority to hear a case. When the record discloses a lack of jurisdiction, this court must dismiss the appeal.

6. K.S.A. 22-3504 is not an appellate jurisdiction statute; it is contained in Article 35 of our code of criminal procedure, which governs posttrial motions.

7. Kansas courts have interpreted K.S.A. 22-3504 to allow either party to challenge the legality of a sentence at any time, including for the first time on appeal, because the legality of a sentence (1) can be challenged at any time and (2) is a question of law subject to de novo review.

8. There is a distinction between permitting a party to assert a claim for the first time on appeal and this court's jurisdiction to hear the appeal in the first place. The ability to raise a claim generally encompasses considerations of notice, preservation, and timeliness. Jurisdiction defines a court's power to consider an appeal at all, regardless of the issues raised. 3

9. K.S.A. 22-3504 does not vest an appellate court with jurisdiction to consider an appeal by the State solely on the claim that a sentence is illegal. Instead, an appellate court's jurisdiction in a criminal case must arise from one of the limited procedural postures set forth in K.S.A. 22-3602.

10. The Court of Appeals is duty-bound to follow Kansas Supreme Court precedent unless the court is convinced, based on recent decisions by the state's highest court, that a decision no longer accurately reflects Kansas law.


Held: The district court erred by holding a nonverbal gesture was insufficient to give consent for officers to search an apartment.  The motion to suppress should not have been granted.

1. The failure to cross-appeal from an adverse decision by the district court generally bars the prevailing party from challenging the lower court's ruling on that issue.

2. Section 15 of the Kansas Constitution Bill of Rights provides the same protection from unlawful government searches and seizures as does the Fourth Amendment to the United States Constitution.

3. The State has the burden to prove by a preponderance of the evidence that a defendant's consent to search is valid.

4. The standard for measuring the scope of a person's consent under the Fourth Amendment is that of objective reasonableness—what would a reasonable person have understood by the exchange between the officer and the person. 2

5. Mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent.

6. A defendant may validly consent for officers to enter his or her apartment by responding nonverbally to the officers' request to enter by acts that are specific and unequivocal, such as by opening the door widely, stepping back, and making a sweeping gesture with his or her hand.

7. Consent must be specific and unequivocal, but it need not be verbal. Consent may instead be granted through gestures or other indications of agreement, so long as they are comprehensible enough to a reasonable officer.



1. To establish the right to a new trial based on newly discovered evidence, a criminal defendant must show: (1) that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) that it is of such materiality that it would be likely to produce a different result upon retrial.

2. Three essential elements must exist in a claim alleging violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963): (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) it must be material so as to establish prejudice.

3. Under K.S.A. 2018 Supp. 60-456(b), a district court has a gatekeeping obligation to ensure the reliability and relevancy of proposed expert testimony. In performing its gatekeeping function, a district court may consider the nonexclusive factors set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. 2 Ed. 2d 469 (1993). The reliability inquiry must be tied to the particular facts and circumstances of the particular case.

4. Under K.S.A. 2018 Supp. 60-456(b), the district court must have considerable leeway in deciding in a particular case how to determine whether expert testimony is reliable. The court should consider the specific factors identified in Daubert where they are reasonable measures of reliability. Whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the district court broad latitude to determine.

5. Under the facts of this case, evidence documenting prior assault of a child sufficient to visibly distress him and leave bruises on his face constitutes other crime evidence under K.S.A. 2018 Supp. 60-455. Such evidence is so similar to the medical observations and conclusions at issue that it is reasonable to conclude the same individual committed both the prior acts and those claimed in this case. It is relevant to show the defendant's modus operandi, a disputed material fact, and is probative because it contradicts the defendant's claim that previous health issues and not the defendant caused the child's death. And the district court did not abuse its discretion in finding the probative value of this evidence outweighed its prejudicial effect.

6. In requesting recusal of a trial judge under K.S.A. 20-311d(b), the language of the statute and Kansas caselaw make plain that under the circumstances of this case an affidavit is required for the chief judge to review. An affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirmation. 3

7. The party alleging judicial misconduct bears the burden of establishing that it occurred and that it prejudiced the party's substantial rights. Under the circumstances of this case, a motion for change of judge for posttrial matters based on an allegation in a letter from one trial spectator that the judge appeared to be sleeping during the trial was not sufficient to meet this burden.

8. An abuse of discretion standard applies to the district court's ruling on enforceability of a stipulation. Under the circumstances of this case, the court did not abuse its discretion in declining to enforce a stipulation regarding waiver of hearsay and foundation objections to medical records used to form the basis of a proposed expert's opinion where the court held the defendant's proposed expert was excluded from testifying.

9. In the absence of any trial error, none can accumulate; and the presence of one error is insufficient to accumulate.


NEW LAW: At the State's suggestion, the foundation for admitting audio recordings at trial formerly found in State v. Williams has been simplified and is now found under K.S.A. 60-401.

1. The seven-factor test for authenticating an audio recording outlined in State v. Williams, 235 Kan. 485, 681 P.2d 660 (1984), is no longer controlling in Kansas. Audio recordings qualify as writings under the Kansas Rules of Evidence, K.S.A. 60-401 et seq.

2. Under the rules of evidence, K.S.A. 60-401 et seq., the authentication requirement for a writing is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The burden of authentication is minimal or slight, and there is no precise formula for district judges to determine authenticity. Indirect or circumstantial evidence can suffice. A proponent need only proffer evidence upon which a reasonable juror could conclude that an audio recording is what the proponent represents it to be. Such evidence may include the content of the recordings. Discrepancies and other conflicting evidence go to the weight, not the admissibility, of the recordings.

3. On the record in this case, the district judge did not abuse his discretion in admitting jail telephone call recordings into evidence.

4. The phrase "moving violations" in K.S.A. 2015 Supp. 8-1568(b)(1)(E), Kansas' fleeing and eluding statute, is not unconstitutionally vague.


1. The felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2), requires proof that the defendant engaged in dangerous, felonious conduct and that a death occurred as a result of that conduct. Intent to kill is not an element of felony murder.

2. The Kansas felony-murder statute does not operate as an unconstitutional, conclusive presumption that invades the jury's province.

3. A trial judge's jury instruction that states, "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," is legally correct.

4. It is not prosecutorial error to state to a prospective juror, "So we don't have that luxury as a juror when it comes to jury instructions. And what that means is at the end of the trial you will get a packet of jury instructions and that is the law in the case. You don't get to go back and debate that."

5. The test for a disproportionality challenge based on § 9 of the Kansas Constitution Bill of Rights includes both legal and factual inquiries. An argument that a sentence violates § 9 because it is cruel or unusual cannot be raised for the first time on appeal.

6. A hard 25 life sentence is not categorically disproportionate when applied to young adults convicted of felony murder.