State v. Wright, 112,635

• Decision Date: 16 February 2018
• Docket Number: No. 112,635,112,635
• Citation: 410 P.3d 893,307 Kan. 449
• Parties: STATE of Kansas, Appellee, v. Kristofer J. WRIGHT, Appellant.
• Court: Kansas Supreme Court

307 Kan. 449

410 P.3d 893

STATE of Kansas, Appellee,

v.Kristofer J. WRIGHT, Appellant.

No. 112,635

Supreme Court of Kansas.

Opinion filed February 16, 2018.

Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P. Whalen, of the same firm, was with her on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Beier, J.:

This is defendant Kristofer J. Wright's direct appeal from his conviction for first-degree premeditated murder and conspiracy to commit murder. We previously issued a decision remanding the case for an evidentiary hearing in district court to establish a record on whether a violation of Wright's right to be present at a continuance hearing caused reversible harm. State v. Wright , 305 Kan. 1176, 390 P.3d 899 (2017). The hearing has now been conducted; we retained appellate jurisdiction.

Having evaluated the results of the hearing on remand, we hold that there was no reversible error resulting from the violation of Wright's right to be present, from any related allegation of error based on his lawyer's later failure to argue in favor of dismissal for violation of the speedy trial statute, or from the prosecution's failure to bring Wright to trial within 90 days of his arraignment.

We also have reviewed Wright's remaining appellate challenges to his convictions, one of which deals with the content of the jury instruction on premeditation, one of which addresses the prosecutor's erroneous statement about that content during the instructions conference with the district judge, and one of which challenges the content of the instruction on intent. None of these challenges requires reversal.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of Wright's crimes are irrelevant to his purely legal arguments and thus will not be recited here.

Our earlier decision recited the procedural history necessary to an understanding of Wright's appellate claim that his right to be present at all critical stages of the prosecution against him had been violated. Of course, our remand continued the development of the procedural history on that claim, and the following further recitation provides necessary context for our ultimate disposition.

Immediately after issuance of our earlier decision, the State filed a motion for rehearing or modification. Before that motion could be ruled upon, Judge Warren M. Wilbert, the district judge who had presided over the docket call at which Wright's counsel, Timothy A. Frieden, successfully sought the continuance Wright did not want, telephoned and sent a letter to this court, attempting to explain what was likely to have occurred when the continuance was granted. The court filed Judge Wilbert's letter with the Clerk of the Appellate Courts, and the parties were notified of Judge Wilbert's efforts to contact the court.

Wright's appellate lawyer then filed a motion seeking to have a district judge other than Judge Wilbert assigned on remand.

By order dated May 26, 2017, this court denied the State's motion for rehearing or modification and granted Wright's motion to have a different judge assigned to conduct the evidentiary hearing on remand. This court's order also gave further, more explicit instructions for the hearing and its aftermath, stating:

"We emphasize that the issue before this court is whether Wright's presence would have made any difference in the decision to grant the continuance. In order to arrive at findings on this question, the district judge assigned by Chief Judge [James] Fleetwood must give both Wright and his lawyer on the one hand and the State on the other hand an opportunity for an on-the-record, evidentiary hearing.

"After that hearing is held, the district judge must produce a journal entry containing his or her factual findings. That journal entry must be added to the appellate record before us in this case. Neither a telephone call nor a letter to any member of the court or to the appellate clerk will be sufficient for the judge to discharge his or her duty under this order or under our [earlier] opinion.

"A transcript of any hearing held on the issue also must be produced and added to the appellate record.

"When both the journal entry and the transcript of any hearing have been added to the appellate record, counsel for Wright and for the State shall file a joint notice with the appellate clerk that the case is ready for further appellate review by this court. No further briefing or oral argument will be permitted."

On October 5, 2017, the parties filed the required joint notice. Chief Judge Fleetwood had assigned himself to conduct the evidentiary hearing, which was held on August 8, 2017. Wright, Frieden, two prosecutors, and Judge Wilbert testified at the hearing.

As of the time of the August 19, 2013, grant of the continuance for which Wright was not present, the State still had 35 of its 90 statutory days to bring the defendant to trial. Instead, trial did not commence until the following February—after intervening, unchallenged events further delayed it beyond its second setting of October 21, 2013.

The witnesses at the evidentiary hearing mentioned five possibilities for what would have occurred on the day Frieden obtained the continuance had Wright been present to voice his objection:

1. A less-than-35-day continuance would have been granted and charged to the State, and the case would have been brought to trial within the statutory 90 days.

2. Wright would have been persuaded to acquiesce in the continuance sought by Frieden, meaning the continuance would have been correctly charged to the defense.

3. The continuance would have been granted and charged to the defense despite Wright's objections, because his expectation that his counsel would be ready for trial so quickly in a murder case was unrealistic.

4. Judge Wilbert would have ordered a 30–day continuance under K.S.A. 2013 Supp. 22-3402(e)(4) based on the court's crowded docket, and the case would have been brought to trial within 90 days.

5. The State would have been granted a 90–day material evidence continuance under K.S.A. 2013 Supp. 22-3402(e)(3), which would have avoided speedy trial concerns.

Judge Fleetwood made a factual finding that Judge Wilbert was aware of the five possibilities, regardless of the more limited information that Judge Wilbert's letter to this court had conveyed. Judge Fleetwood also found that Option 1, the scenario the prosecutors had described as most likely, would have occurred if Wright had been present and objecting. The trial would have been continued, because local procedures for alerting the court to the need for a judge to try the case that day had not been followed, and no judge was available to try it. The defendant had no statutory right to trial that day . The State would have been required to take a continuance charged to it, and prosecutors and the court would have ensured that the defendant's trial began within the next 35 days, i.e., before expiration of the statutory time limit of 90 days. If, by the time of the next trial setting, the prosecutors continued to believe that certain cell phone and tower records were important for the State's case, and they had not received them, they would have been free to seek a material evidence continuance of up to an additional 90 days. Because the records ultimately were obtained well within what would have been that additional 90 days, the State could have met its speedy trial obligation.

As mentioned, Wright advances two other appellate challenges related to his claim that the violation of his right to be present caused his statutory right to speedy trial to be violated, a right he cannot vindicate effectively on appeal. See State v. Brownlee , 302 Kan. 491, 511, 354 P.3d 525 (2015) (interpreting K.S.A. 22-3402 ; even if continuance originally attributed to defense is attributed to State on appeal, appellate remedy very limited).

First, Wright alleges that he was denied conflict-free counsel when Frieden did not argue Wright's pro se motion to dismiss based on the speedy trial statute.

The record before us demonstrates that Wright filed a pro se motion to dismiss on October 10, 2013—52 days after Frieden sought and obtained a continuance on August 19, i.e., 17 days after the expiration of 90 days from Wright's arraignment. Wright argued that his right to be present had been violated and that attribution of the continuance to him without his agreement violated his statutory right to a speedy trial.

On October 21, 2013, the date of the second trial setting resulting from the continuance Frieden had obtained, Wright was with Frieden in court before Judge Wilbert when the substance of the pro se motion was discussed. Frieden informed the judge that he had wanted the August continuance and had thought Wright was "on board" with that plan but that Wright had objected. Judge Wilbert noted that there had been only one continuance. One of the prosecutors, Jennifer Amyx, informed the judge that new discovery had just been sent to Frieden.

Judge Wilbert asked Wright if he would give Frieden more time to prepare for trial, given the seriousness of the charges. Wright said no. Wilbert then told Wright that he would be forcing Frieden to go to trial unprepared—"biting off your nose to spite your face"—and said that a continuance on a first-degree murder case was not unusual. The judge declined to dismiss and again continued the case, this time attributing the continuance to the State.

On November 8, 2013, Wright again was in court with Frieden when Judge Joseph Bribiesca considered Wright's pro se motion. Frieden told Judge Bribiesca that he did not believe he could argue the motion. The judge agreed:

"Wright is, in essence, taking the position that there were continuances taken by the defense that he didn't authorize. ...

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