444 P.3d 379
Kan. Ct. App.2019Background
- Scott P. Roeder was convicted by jury of premeditated first-degree murder (for killing Dr. George Tiller) and two counts of aggravated assault; convictions were affirmed on direct appeal.
- Roeder filed a K.S.A. 2018 Supp. 60-1507 motion alleging (inter alia) denial of presence at first appearance, denial of counsel of choice, ineffective assistance of trial and appellate counsel, and deliberate legal indifference; the district court summarily dismissed the motion.
- Roeder also filed an emergency motion seeking a stay of execution for "unborn and partially born individuals," which the district court dismissed for lack of standing and as an abuse of process.
- The district court found Roeder’s claims conclusory, unsupported by law or record, or should have been raised on direct appeal; Roeder’s motion to alter or amend was denied.
- On appeal the Kansas Court of Appeals reviewed the summary dismissal de novo and affirmed both dismissals.
Issues
| Issue | Roeder's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Right to be present at first appearance | Roeder says he appeared by two-way video and was not informed of right to be personally present; this prejudiced him | Record shows Roeder and counsel were present at preliminary hearing; no constitutional right was violated and no certified transcript establishes statutory notice error | Denied — records conclusively show no entitlement to relief |
| 2. Right to counsel at first appearance | Roeder claims Sixth Amendment right to counsel was violated when no counsel was provided at first appearance | First appearance/bail not a "critical stage" requiring counsel; counsel was appointed next day and acted promptly on bond | Denied — no constitutional violation or prejudice |
| 3. Ineffective assistance of trial counsel (failure to call coroner to support necessity / imperfect defense-of-others) | Roeder says coroner testimony was necessary to prove abortions were legal "harm" and support necessity or imperfect defense-of-others instructions | Kansas Supreme Court already held factual/legal grounds foreclosed those defenses in Roeder's direct appeal; counsel not deficient for failing to pursue foreclosed theory | Denied — counsel not deficient; no prejudice |
| 4. Ineffective assistance of appellate counsel (imminence definition and oral argument performance) | Roeder argues appellate counsel should have urged broader DOJ definition of "imminence" and answered hypotheticals differently | No legal support in Kansas for DOJ memorandum definition; Supreme Court already rejected imminence and found counsel’s advocacy within reasonable bounds | Denied — no deficient performance |
| 5. Emergency motion to protect unborn/partially born individuals | Roeder sought stay of execution or ancillary relief on behalf of unborn persons within his 1507 proceeding | 60-1507 is an individual collateral remedy; Roeder cannot litigate others’ rights in his 1507; filing such ancillary claims is abuse of process | Denied — court properly dismissed for lack of standing and abuse of process |
Key Cases Cited
- Sola-Morales v. State, 300 Kan. 875, 335 P.3d 1162 (explaining standards for summary denial of K.S.A. 60-1507 motions)
- State v. Roeder, 300 Kan. 901, 336 P.3d 831 (direct appeal rejecting necessity and imperfect-defense theories in this factual context)
- State v. White, 284 Kan. 333, 161 P.3d 208 (defining "imminent" as danger "near at hand" for defense-of-others)
- State v. Hernandez, 253 Kan. 705, 861 P.2d 814 (imminence analysis for defense-of-others; danger not imminent when victim not present)
- State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (purpose of prompt magistrate appearance after arrest to protect rights)
- State v. Lowery, 308 Kan. 1183, 427 P.3d 865 (statutory and constitutional right to be present at critical stages)