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Date: 07-26-2024
Case Style:
STATE OF KANSAS v. CHRISTOPHER D. KEMMERLY
Case Number: . 125,508
Judge: Jack L. Wilson
Court: IN THE SUPREME COURT OF THE STATE OF KANSAS
Plaintiff's Attorney: Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Kris W. Kobach, attorney general
Defendant's Attorney: Hope E. Faflick, of Kansas Appellate Defender Office
Description: cty, st criminal defense lawyer represented the Defendant the right to self-representation
On the evening of February 17, 2019, Justin Gaston got out of a white Cadillac in
the parking lot of a motel in Wichita. One of the Cadillac's occupants shot him in the
back with a shotgun; he died shortly after the Cadillac sped off. Circumstantial evidence
(including messages taken from Kemmerly's phone) eventually led investigators to arrest
Kemmerly for Gaston's murder; statements by Reyna Wallace (Kemmerly's girlfriend and
the Cadillac's driver) and Christopher Breedlove (the then-boyfriend of Kemmerly's
sister) also implicated Kemmerly.
The State ultimately charged Kemmerly with felony murder, criminal possession
of a weapon under K.S.A. 21-6304(a)(2), theft, and arson. The case went to trial, with
two attorneys representing Kemmerly. After a five-day trial, a jury found Kemmerly
guilty. Kemmerly then moved pro se for a new trial on a theory of ineffective assistance
of counsel. After an evidentiary hearing, the district court granted Kemmerly's motion.
As discussed below, Kemmerly moved to represent himself at the second jury
trial, which the district court granted. The second trial lasted nine days. Kemmerly
represented himself throughout, calling numerous witnesses—including testifying
4
himself—and presenting dozens of exhibits. His theory, broadly, was that Wallace and
another man known as "Scooby Dooby Doo" or "Scoob" had killed Gaston, and that any
text or Facebook messaging implicating Kemmerly was, in fact, the product of Wallace
having stolen his phone.
At the end of the second trial, the jury again found Kemmerly guilty of firstdegree murder, criminal possession of a weapon by a convicted felon, theft, and arson.
Judge Goering—who presided over almost every hearing, including both jury trials and
all relevant motion hearings—gave Kemmerly a controlling sentence of 620 months.
Kemmerly appealed.
ANALYSIS
The district court did not violate Kemmerly's Sixth Amendment right to counsel.
Kemmerly claims the district court violated his Sixth Amendment right to counsel
twice: first by allowing him to go to trial pro se without an adequate waiver, and later by
denying him counsel when he requested it in the middle of his second trial.
Kemmerly also briefly mentions section 10 of the Kansas Constitution Bill of
Rights but appears to treat it as indistinguishable from the Sixth Amendment. As in
State v. Couch, 317 Kan. 566, 576, 533 P.3d 630 (2023), Kemmerly relies on Sixth
Amendment caselaw and "does not use our established rules of constitutional
interpretation to analyze whether the textual differences between section 10 and the Sixth
Amendment are legally significant." Couch, 317 Kan. at 576. Thus, we treat Kemmerly's
claim for relief as solely arising under the Sixth Amendment, as Couch did.
5
A. Kemmerly's pretrial decision to self-represent did not violate his Sixth Amendment
right to counsel.
Standard of Review
"Waiver of the right to counsel must be knowingly and intelligently made and the
determination of such a waiver depends on the particular facts and circumstances of each
case." State v. Buckland, 245 Kan. 132, 137, 777 P.2d 745 (1989). Thus, to the extent the
district court made findings in accepting Kemmerly's waiver, the court applies "a
bifurcated standard of review, reviewing the district court's fact-findings for substantial
competent evidence and the district court's legal conclusion de novo." Couch, 317 Kan. at
575. "Substantial competent evidence is that which possesses both relevance and
substance and which furnishes a substantial basis in fact from which the issues can
reasonably be resolved." State v. Sharp, 289 Kan. 72, 88, 210 P.3d 590 (2009).
Additional Facts
After his first trial, Kemmerly moved to represent himself on his pro se ineffective
assistance of counsel motion. The district court heard the motion on February 6, 2020,
and held an extended colloquy with Kemmerly, even commenting at one point that it
would "read [the factors from State v. Lowe, 18 Kan. App. 2d 72, 76-77, 847 P.2d 1334
(1993)] straight from the case." Kemmerly acknowledged his understanding throughout.
At the end of the discussion, the court found that Kemmerly "made a knowing and
intelligent decision to forego counsel and to represent himself in this case," and permitted
Mark Sevart to act as standby counsel. (During oral argument before this court,
Kemmerly's counsel conceded this waiver was adequate.) But Kemmerly quickly
backtracked and asked for counsel again, and the court reappointed Sevart. Sevart then
6
represented Kemmerly at the evidentiary hearing on the ineffective assistance of counsel
motion, after which the court granted Kemmerly's motion and reversed Kemmerly's
convictions.
On July 8, 2021, Kemmerly filed a motion for self-representation in his thenpending trial. In the motion, Kemmerly asserted:
"1.) He has a right to represent himself.
"2.) He is mentally competent.
"3.) He has displayed an understanding of the law.
"4.) He wishes to keep attorney Mr. Mark Sevart as an advisor or as stand-by in case he
wishes to continue with court-appointed representation in the future. This is a reasonable
request and not entirely uncommon."
On July 13, 2021, Kemmerly wrote to Judge Goering, stating, among other things:
"Your Honor, I will be moving Pro Se. I will not be dissuaded from exercising that right.
I don't need to have a Lowe Hearing. I will be formally waiving that. We need not to
waste record space."
The district court heard Kemmerly's motion to self-represent on July 26, 2021.
Sevart represented Kemmerly at first. The court noted that "this isn't the first Lowe
hearing that we've had" and that "[w]e've gone through these elements before in a prior
hearing." Kemmerly recalled the date almost correctly—"February 5th. You're right."—
and agreed that judges in other cases had reviewed the Lowe factors with him before. The
district court said that it did not "see any need to repeat what's already been mentioned to
you on numerous occasions." But the court still clarified a few matters:
7
"THE COURT: . . . There are two factors though that I want to review with you
so that we're sort of on the same page right out of the gate. The first is if I grant your
motion for self-representation, you are basically in charge of the case and, you know, it's
up to you to figure out how to do the things the lawyers would typically do.
"Do you understand that?
"THE DEFENDANT: Yep.
"THE COURT: All right. So one of the things we've been talking about briefly,
there's this motion for a private investigator. I think you should understand that my role
in that is to approve of a private investigator.
"Once you get Court approval of a private investigator, then it's up to the lawyer
to contact the Board of Indigents' Defense Services to convince them that one is
necessary to your case. And then it's up to you to convince the Board of Indigents'
Defense Services that the person that you're proposing to do the investigation is
somebody that they would approve of.
"All of that stuff is usually done by the lawyers. So it would have to be done by
you at this time if your request is granted. In other words, I don't appoint investigators in
the same way that I appoint lawyers. I just approve them.
"So if they're approved, then I know you don't want Ms. Morss on your case, and
that's fine. It's just a matter of it will be up to you to locate somebody that can do that and
can do it with approval of BIDS, and I know that's an important request to you, and I just
wanted everyone to be up front as to what that's going to mean if I grant your request.
"THE DEFENDANT: Okay.
"THE COURT: Do you have any questions about that?
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"THE DEFENDANT: I just need that address.
"THE COURT: All right. The address for BIDS?
"THE DEFENDANT: Yeah.
. . . .
"THE COURT: . . . The second issue that I think that I need to review with you is
that as an in-custody, you found that it is harder for you to represent yourself than it is
when you're out of custody for the simple fact that your freedom is limited, your ability to
communicate is limited. So the ability to issue subpoenas, to interview witnesses, to do
those sorts of things is substantially harder for you as somebody in custody than it is for
somebody out of custody.
"Do you understand that if I grant your motion to represent yourself that, you
know, those are things that you're just going to have to figure out as an inmate of the
Sedgwick County Jail?
"THE DEFENDANT: Correct."
The court also discussed discovery logistics with Kemmerly and Sevart, who
relayed that it amounted to "several thousand" pages and included photographs and
videos. The court further pointed out that trial was scheduled in just eight weeks;
although Kemmerly said he would be ready for trial by then, the court characterized this
as "a very aggressive, optimistic view." At the end of this discussion the district court
said that:
"The purpose of going through the State v. Lowe factors is so that you're well
educated and know enough about the pitfalls of self-representation to make voluntary and
9
knowledgable [sic] decisions. So we've already been through that in this case before. You
have been through it with other judges."
The court gave Kemmerly the chance to ask any questions; he did not. The court
then granted Kemmerly's motion. Kemmerly remained pro se throughout the trial,
although—as discussed below—he briefly requested counsel midway through trial. He
also requested appointed counsel once the jury found him guilty, which the district court
granted.
Analysis
"Neither the United States nor Kansas Constitutions explicitly provide for a right
of self-representation. Instead, the United States Supreme Court implied the right to
waive counsel and act as one's own attorney from the right to counsel granted in the Sixth
Amendment to the United States Constitution." State v. Burden, 311 Kan. 859, 863, 467
P.3d 495 (2020). But "[b]ecause the right to represent oneself is 'at odds with the right to
be represented by counsel, the courts must indulge every reasonable presumption against
waiver of the right to counsel[ ] and will not presume acquiescence in the loss of
fundamental rights, i.e., the right to counsel.'" Burden, 311 Kan. at 863. Thus, "in order to
represent himself, the accused must 'knowingly and intelligently' forgo those relinquished
benefits [associated with the right to counsel]." Faretta v. California, 422 U.S. 806, 835,
95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
"A defendant who clearly and unequivocally expresses a wish to proceed pro se
has the right to represent himself or herself after a knowing and intelligent waiver of his
or her right to counsel. A knowing and intelligent waiver requires that the defendant be
informed of 'the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes open.' The
right to represent oneself is implicit in the structure of the Sixth Amendment. 'The right
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to defend is given directly to the accused; for it is he who suffers the consequences if the
defense fails.' A trial court may not measure a defendant's competence to waive his or her
right to counsel by evaluating the defendant's 'technical legal knowledge.' [Citations
omitted.]" State v. Jones, 290 Kan. 373, 376-77, 228 P.3d 394 (2010).
Some cases have "suggest[ed] the [district] court explain" certain consequences of
the decision to proceed pro se. Burden, 311 Kan. at 864. But we do not require district
courts to follow a particular checklist to ensure that a defendant's waiver of the right to
counsel is knowing and intelligent; rather, we assess the sufficiency of a waiver of the
right to counsel "by examining the circumstances of each case." Burden, 311 Kan. at 864.
While such checklists certainly exist—including the so-called "Lowe factors" made
famous by State v. Lowe, 18 Kan. App. 2d 72, 76-77, 847 P.2d 1334 (1993), which
Kemmerly mentioned in his pretrial motion to proceed pro se—we have instead
"suggested a three-step framework . . . to use in determining if a waiver is knowing and
intelligent." Burden, 311 Kan. at 863. Under this framework:
"First, a court should advise the defendant of the right to counsel and to appointed
counsel if indigent. Second, the defendant must possess the intelligence and capacity to
appreciate the consequences of his or her decision. And third, the defendant must
comprehend the charges and proceedings, punishments, and the facts necessary for a
broad understanding of the case." Burden, 311 Kan. at 863.
Kemmerly's arguments focus on the third component of the Burden framework.
He complains that the district court provided insufficient warnings about what Kemmerly
was giving up and what would be expected of him and failed to inquire about
Kemmerly's state of mind.
But the law does not require us to wear blinders, ignoring everything but that
colloquy. Instead, we "weigh whether a defendant has knowingly and intelligently
11
waived the right to counsel by examining the circumstances of each case." Burden, 311
Kan. at 864. Cf. State v. Armstrong, 240 Kan. 446, 454, 731 P.2d 249 (1987) (looking to
defendant's knowledge of the charges, penalties, and defenses from his previous two
trials, at which he was represented by counsel). See also, e.g., United States v. Forrester,
512 F.3d 500, 506-07 (9th Cir. 2008) (noting a "'limited exception'" when a district
court's colloquy is insufficient but "'the record as a whole reveals a knowing and
intelligent waiver'"); United States v. Todd, 424 F.3d 525, 531-33 (7th Cir. 2005) (failure
to conduct a "full" Faretta inquiry "is not necessarily fatal"; analyzing full record of the
case to consider whether defendant made a knowing and intelligent waiver); United
States v. Singleton, 107 F.3d 1091, 1097 (4th Cir. 1997) ("[W]e review the sufficiency of
a waiver of the right to counsel by evaluating the complete profile of the defendant and
the circumstances of his decision as known to the trial court at the time. This
determination can be made by examining the record as a whole."); United States v. Willie,
941 F.2d 1384, 1389 (10th Cir. 1991) ("[T]he surrounding facts and circumstances,
including [defendant's] background and conduct, demonstrate that [defendant] actually
understood his right to counsel and the difficulties of pro se representation and knowingly
and intelligently waived his right to counsel.").
Thus, we consider the whole record to gauge whether the district court had
sufficient information to find that Kemmerly's waiver and decision to self-represent was
knowing and intelligent. As noted, Judge Goering presided over almost all the hearings in
the record—including both trials and both hearings on Kemmerly's motions to go pro se.
He had ample opportunity to observe Kemmerly and, thus, to conclude that Kemmerly
knew of his right to counsel, understood the nature of the charges and punishment, and
possessed the intelligence and capacity to understand the consequences of the waiver.
Further, Judge Goering knew that he had explained the consequences of a waiver both at
the first waiver colloquy and—to a lesser degree, albeit with more specific trial-focus—at
12
the second waiver colloquy 17 months later. And while Kemmerly complains that the
district court took no steps at the second colloquy to ensure that Kemmerly remembered
the first colloquy, Kemmerly's agreement that they covered the material before—in
addition to his ability to recall Lowe by name and even, within a day, the date of the first
colloquy—support the finding that Kemmerly knew those things Burden requires and had
the intelligence and capacity to understand them.
Thus, despite the district court conducting an abbreviated colloquy immediately
before accepting Kemmerly's waiver of his right to counsel, the record convinces us that
the district court did not err in finding Kemmerly's waiver of his right to counsel and his
decision to self-represent were knowing and intelligent under the three Burden
requirements. We again emphasize that the district court need not go through a Lowe
style checklist before accepting a waiver of the right to counsel—however advisable such
a checklist may be to clearly document, on the record, that the defendant waived his
rights knowingly and intelligently—so long as the requirements outlined in Burden have
been satisfied. Here, the district court did not violate Kemmerly's rights in permitting him
to proceed to trial pro se.
B. The district court did not abuse its discretion in denying Kemmerly's midtrial
request for counsel.
Kemmerly next complains that the district court violated his right to counsel by
denying his midtrial request for an attorney and by failing to appoint him standby
counsel.
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Standard of Review
Kemmerly's argument implicates the district court's discretion. "'A district court
abuses its discretion when (1) no reasonable person would have taken the view adopted
by the district court; (2) the judicial action is based on an error of law; or (3) the judicial
action is based on an error of fact.'" State v. Hillard, 313 Kan. 830, 838, 491 P.3d 1223
(2021) (quoting State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 [2018]). The burden
of establishing an abuse of discretion rests with the party alleging it. Hillard, 313 Kan. at
838.
Additional Facts
On the sixth day of trial and the fifth day of evidence, Kemmerly called his sister
Heather to the stand. On redirect, Kemmerly tried to ask her about the quality of the
questions she was asked during his first trial, but the district court blocked this line of
questioning. After the district court sent the jury out for the afternoon recess, Kemmerly
began to complain about his counsel from the first trial; the district court explained that
the conduct of the attorneys during the first trial was "just simply not admissible." The
district court recognized Kemmerly's point that his sister had testified consistently and
allowed him to highlight whether "you were never asked" a question but forbade him
from asking "whether a question was proper or not." The court then took a recess.
After the recess, the court asked if the parties wished to add anything. Kemmerly
said, "Outside my request for counsel, nothing, Your Honor." He then clarified:
"Mr. Kemmerly: I said outside of a request for counsel since I'm, you know,
getting stonewalled, nothing. Nothing else.
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"The Court: Okay.
"Well, in terms of a request for counsel, I think it is a little late to appoint
counsel, so—well, that request just isn't timely, so let's bring in the jury."
Kemmerly did not request counsel again until the end of his trial, when he asked
for—and was given—counsel for post-trial matters and appeal.
Analysis
While there is some indication Kemmerly's midtrial request for counsel was more
complaint than actual request, we assume for purposes of this analysis it was a genuine
request. This court has not considered whether a district court's refusal to appoint midtrial
counsel after a defendant's prior knowing and intelligent waiver of counsel rests in the
district court's discretion. But we have held that a district court has discretion when faced
with the inverse scenario: a represented defendant's midtrial request to proceed pro se.
E.g., State v. Collins, 257 Kan. 408, 416, 893 P.2d 217 (1995); State v. Cromwell, 253
Kan. 495, 505, 856 P.2d 1299 (1993). When presented with such a request, district courts
"should balance the alleged prejudice to the defendant with any disruption of the
proceedings, inconvenience and delay, and possible confusion of the jury" and "should
also consider the reason for the request and the quality of counsel's representation."
Collins, 257 Kan. at 415. We now extend this reasoning to situations like Kemmerly's: a
pro se defendant who requests counsel midtrial. See, e.g., State v. Hubbard, No. 121,757,
2021 WL 137398, at *7-9 (Kan. App. 2021) (unpublished opinion); State v. Campbell,
No. 116,551, 2018 WL 1352541, at *5-8 (Kan. App. 2018) (unpublished opinion). See
also United States v. Leveto, 540 F.3d 200, 207 (3d Cir. 2008) ("[O]nce the [Sixth
Amendment] right [to counsel] has been properly waived, as is the case here, we are
persuaded by the broad consensus of other courts that the consideration of a defendant's
15
post-waiver request for counsel is well within the discretion of the district court."). Thus,
we must assess whether the district court abused its discretion.
Kemmerly's request for counsel arose almost as an aside following his
unsuccessful attempt to question his sister about his counsel's questioning during his first
trial. It appears his only reason for seeking appointed counsel was his belief that he was
being "stonewalled" on this line of questioning.
Kemmerly suggests, without elaboration, that "the court could have avoided
disruption by appointing standby counsel." But the decision to appoint "standby" counsel
or authorize some other hybrid representation scheme is discretionary. E.g., Buckland,
245 Kan. at 139; State v. Matzke, 236 Kan. 833, 837, 696 P.2d 396 (1985); Hubbard,
2021 WL 137398, at *4-6. And appointed counsel in any capacity, standby or otherwise,
would have had to come up to speed on the case before they could effectively represent
Kemmerly—a delay that would have taken weeks, at a minimum, and caused inordinate
disruption. Moreover, the appointment of counsel would not have addressed the object of
Kemmerly's vexation: the district court would not have permitted appointed counsel to
question the propriety of Kemmerly's first attorney's questioning any more than it
allowed Kemmerly to do so.
Kemmerly fails to show that the district court's decision not to appoint counsel
was based on an error of fact or law, much less that no reasonable person would have
made the same choice—especially when nobody raised the matter of standby counsel at
the hearing, even though the motion itself requested standby counsel. Thus, we find no
error in the district court's refusal to appoint Kemmerly counsel midtrial.
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Sufficient evidence supported Kemmerly's convictions.
Kemmerly next argues that his felony murder conviction was not supported by
sufficient evidence because Wallace—whom he calls the State's "star" witness—suffered
from such a lack of credibility that no rational fact-finder could have found Kemmerly
guilty. Although Kemmerly acknowledges the general rule that appellate courts do not
reweigh evidence or pass on credibility, he argues that "[a] witness can be so incredible
that i[t] does not sustain a conviction when no rational factfinder could believe the
testimony and find a defendant guilty beyond a reasonable doubt."
"'When the sufficiency of the evidence is challenged in a criminal case, we
review the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt. An
appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on
the credibility of witnesses. This court has also recognized that there is no distinction
between direct and circumstantial evidence in terms of probative value.'" Hillard, 313
Kan. at 848 (quoting State v. Colson, 312 Kan. 739, 749-50, 480 P.3d 167 [2021]).
Kemmerly relies on State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983), to
support this extraordinary claim. Unlike the present case, State v. Matlock involved a
conviction for rape based solely on the uncorroborated testimony of the complaining
witness. 233 Kan. at 3. The court emphasized an apparently special rule that "in order to
convict on the uncorroborated testimony of the prosecutrix, the testimony of the
prosecutrix must be clear and convincing, and that where her testimony is so incredible
and improbable as to defy belief, the evidence is not sufficient to sustain a conviction."
233 Kan. at 3. After "carefully examin[ing]" the myriad ways in which the defense
witnesses undercut the testimony of the complaining witness, the court concluded that
17
she was unbelievable and, thus, that insufficient evidence existed to support a conviction.
233 Kan. at 4-6.
Matlock provides Kemmerly no help. Even if Matlock were not so clearly
distinguishable—a rape case with apparently no corroborating evidence to support a
certain witness' claim—no other Kansas case has followed its "aberrant review." See
State v. Brinklow, 288 Kan. 39, 53, 200 P.3d 1225 (2009) (Matlock "is perhaps the only
case of its kind in this state where the Supreme Court directly weighed the evidence and
assessed the credibility of the prosecutrix to reverse a conviction for rape."). Considering
the mountain of precedent forbidding us to consider witness credibility as a component of
a sufficiency of the evidence analysis, we see no reason to entertain Matlock.
If the jury disregarded Wallace's testimony, a wealth of circumstantial evidence
admitted at trial supports the jury's finding beyond a reasonable doubt that Kemmerly
shot and killed Gaston. Viewing that evidence in a light most favorable to the State,
Kemmerly's claim fails.
Kemmerly failed to preserve his claim that K.S.A. 21-6304(a)(3)(A) violates section 4 of
the Kansas Constitution Bill of Rights, and we decline to review it.
Finally, Kemmerly argues that K.S.A. 21-6304(a)(3)(A) is unconstitutional under
section 4 of the Kansas Constitution Bill of Rights. Ignoring that he was actually
convicted under K.S.A. 21-6304(a)(2), Kemmerly failed to raise this challenge before the
district court. He argues that the court should address the issue for the first time on appeal
anyway because—he claims—it poses a pure question of law, involves the "fundamental"
right to bear arms, and is necessary to serve the ends of justice. He also highlights the "at
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least ten panels of the Court of Appeals" that have been presented with this issue but
declined to reach the merits.
"Without a contemporaneous objection, constitutional issues cannot
generally be raised for the first time on appeal. We have recognized some
exceptions to this general rule, including situations where consideration of an
issue is necessary to protect fundamental rights. But '[t]he decision to review an
unpreserved claim under an exception is a prudential one' and '[e]ven if an
exception would support a decision to review a new claim, we have no obligation
to do so.' [Citations omitted.]" Hillard, 313 Kan. at 839-40.
The "prudential" exceptions to the general preservation rule arise when "'(1) the
newly asserted theory involves only a question of law arising on proved or admitted facts
and is determinative; (2) consideration of the theory is necessary to serve the ends of
justice or to prevent the denial of fundamental rights; and (3) the trial court may be
affirmed because it was right for the wrong reason.'" In the Interest of N.E., 316 Kan.
391, 408, 516 P.3d 586 (2022) (quoting State v. Perkins, 310 Kan. 764, 768, 449 P.3d
756 [2019]).
Kemmerly claims the first two exceptions apply. But we disagree that his theory
involves only a question of law. E.g., Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan.
610, 669, 440 P.3d 461 (2019) (highlighting the parties' burdens within the constitutional
challenge framework). As observed by some of the panels that have rejected the
application of prudential exceptions to arguments like Kemmerly's, constitutional
questions "often involve considerable factual development"—development which is also
absent here. State v. Foster, 60 Kan. App. 2d 243, 255, 493 P.3d 283 (2021) (quoting
State v. Johnson, No. 121,187, 2020 WL 5587083, at *5 [Kan. App. 2020] [unpublished
opinion]). And while Kemmerly simply claims that section 4 always prohibits any
19
restriction on the possession of firearms, the State—the party to whom the burden would
shift if strict scrutiny were applied—has had no opportunity to develop a factual record
"to establish the requisite compelling interest and narrow tailoring of the law to serve it."
Hodes, 309 Kan. at 669.
Even assuming without deciding that the rights codified by section 4 are
fundamental, we decline to extend a prudential exception to Kemmerly's claim. As noted,
the absence of any factual development hampers our ability to consider several critical
points necessary for the resolution of Kemmerly's constitutional challenge. Thus, we will
not reach Kemmerly's challenge for the first time on appeal
Outcome:
We affirm Kemmerly's convictions and sentence
Plaintiff's Experts:
Defendant's Experts:
Comments: