STATE v. BUCHHORN (2022)

Supreme Court of Kansas.

STATE of Kansas, Appellee, v. Carrody M. BUCHHORN, Appellant.

No. 122,252

Decided: August 19, 2022

William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, argued the cause, and Keynen J. (K.J.) Wall, Russell J. Keller, and Quentin M. Templeton, of Forbes Law Group, LLC, of Overland Park, and Stephan L. Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC, of Lawrence, were with him on the briefs for appellant. Kris Ailslieger, deputy solicitor general, argued the cause, and Emma C. Halling, assistant district attorney, Kate Duncan Butler, assistant district attorney, Joshua David Seiden, deputy district attorney, Charles E. Branson, former district attorney, Suzanne Valdez, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

This matter involves a child who died unexpectedly at the home daycare where Carrody M. Buchhorn worked. After the Douglas County coroner ruled the child's death was instantaneous and caused by a blow to the head, a jury convicted Buchhorn of second-degree murder. A Court of Appeals panel reversed Buchhorn's conviction and remanded for a new trial because her trial counsel's constitutionally deficient performance prejudiced her right to a fair trial. This court granted review.

Justice Wall took no part in this review because of his prior connection with the case while in private practice before joining the Supreme Court. The remaining six members of the court are equally divided on how the issues on review should be decided. We stated the applicable rule in Paulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 (1986):

“The general rule in this jurisdiction, and elsewhere, is that when one of the justices is disqualified to participate in a decision of issues raised in an appeal and the remaining six justices are equally divided in their conclusions, the judgment of the trial court must stand. [Citations omitted.] See also Kansas Constitution, Art. 3, § 2, which provides that the concurrence of four justices shall be necessary to a decision.”

The court being equally divided, the judgment of the Court of Appeals, the court from which review is sought, reversing the district court and remanding with directions stands. Buchhorn's cross-petition for review is dismissed as moot.

Per Curiam:

Wall, J., not participating.

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