State v. Kelly

• Decision Date: 28 September 2012
• Docket Number: No. 102,210.,102,210.
• Citation: 285 P.3d 1026
• Parties: STATE of Kansas, Appellee, v. Michael J. KELLY, Jr., Appellant.
• Court: Kansas Supreme Court

285 P.3d 1026

STATE of Kansas, Appellee,

v.Michael J. KELLY, Jr., Appellant.

No. 102,210.

Supreme Court of Kansas.

Sept. 28, 2012.

Syllabus by the Court

A defendant who is tried solely on stipulated facts timely interposes an objection to the admission of evidence by filing a motion under K.S.A. 22–3216(3) to suppress evidence and, in doing so, satisfies the requirements of K.S.A. 60–404, even if an objection to the evidence is not stated at trial.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

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

Recently, in State v. Bogguess, 293 Kan. 743, 268 P.3d 481 (2012), this court held that the lack of an objection during a bench trial that consisted solely of stipulated facts did not preclude appellate review of the pretrial denial of a defendant's motion to suppress. We explained that “when the bench trial is conducted by the same judge who presided over the hearing on the motion to suppress, there is no reason to rehash the same argumentswhen no additional evidence has been presented.” Bogguess, 293 Kan. at 747, 268 P.3d 481.

This case raises the question of whether the Bogguess holding applies when the bench trial is conducted by a different judge than the one who made the pretrial suppression ruling. We conclude that having more than one judge involved in the proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a defendant's stipulation to facts for the purpose of a bench trial precludes a defendant from asking the trial judge to ignore—in other words, suppress—evidence that a defendant has agreed can be admitted and considered. Second, because the case is tried solely on stipulated facts there will be no new evidence or arguments submitted that might change the ruling on the motion to suppress. Consequently, there is no legal or factual basis to revisit the suppression issue.

In this case, the defendant's objection to evidence was preserved, and the Court of Appeals erred in concluding it was not.

Factual and Procedural Background

Michael J. Kelly, Jr., appeals from his convictions of possession of cocaine, a severity level 4 drug offense, and possession of marijuana, a class A nonperson misdemeanor.

Before trial, Kelly filed a motion to suppress the drug evidence, arguing the drugs were seized during an unlawful traffic stop. A district judge conducted an evidentiary hearing and denied Kelly's motion.

After the district judge ruled, Kelly waived his right to a jury trial. Kelly's case then proceeded to a bench trial before a different district judge than the one who had denied Kelly's motion to suppress. At the bench trial, the parties stipulated to the admission of a laboratory report and an affidavit of a detective who investigated the case. The detective recited details of the traffic officer's arrest report, noting that Kelly had been stopped for failing to signal and had been arrested when he told the traffic officer his driver's license was suspended. A search incident to arrest revealed substances in Kelly's pockets that the traffic officer suspected were marijuana and cocaine. The laboratory report confirmed the suspicion. No evidence other than the laboratory report and the affidavit was admitted.

The trial judge stated that he had “review[ed] the content of the court file” but did not specifically mention the motion to suppress. Kelly did not mention the motion either and did not state any objections to the judge's consideration of the evidence. The trial judge found the evidence sufficient to convict Kelly as charged.

Kelly appealed his convictions, and the Court of Appeals summarily affirmed under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59). The Court of Appeals concluded Kelly's challenge was procedurally deficient under State v. King, 288 Kan. 333, 204 P.3d 585 (2009), due to a lack of an objection as required by K.S.A. 60–404.

Kelly sought this court's review of the Court of Appeals' decision, arguing K.S.A. 60–404 only requires a “timely” objection and he timely objected by filing a motion to suppress. According to Kelly, a subsequent objection during trial was unnecessary because the issue of guilt was submitted to the trial judge on the basis of stipulated facts. In other words, there was no new evidence relating to the suppression issues and no opportunity for the trial judge to hear anything that would cause the pretrial ruling to change.

This court accepted review and has jurisdiction under K.S.A. 20–3018(b) and K.S.A. 22–3602(e).

Analysis

This court's decision in King, 288 Kan. 333, 204 P.3d 585, which served as the basis of the Court of Appeals' summary affirmation of Kelly's convictions, considered the application of K.S.A. 60–404, which states:

“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”

Although the statute is worded in terms of an objection that is “timely interposed,” caselaw frequently uses the term “contemporaneous objection” to describe the preservation requirement. In King, using the term “contemporaneous-objection rule” to refer to K.S.A. 60–404, we explained the purpose of the rule, stating:

“[The objection requirement is a ‘salutary procedural tool’ that gives the district court ‘the opportunity to conduct the trial without using ... tainted evidence, and thus avoid possible reversal and a new trial.]’ [This court has] ... noted that the contemporaneous-objection requirement is ‘practically one of necessity if litigation is ever to be brought to an end.’ [Citation omitted.]” King, 288 Kan. at 342, 204 P.3d 585.

Other statutory provisions are also aimed at reducing the risk of presenting tainted evidence at trial. One of these provisions, K.S.A. 22–3216(3), is particularly relevant in this case. K.S.A. 22–3216(3) provides that a motion to suppress illegally seized evidence “shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.” In considering the motion to suppress illegally seized evidence, the “judge shall receive evidence on any issue of fact necessary to determine the motion.” K.S.A. 22–3216(2).

We have not viewed the requirements of K.S.A. 60–404 and K.S.A. 22–3216 as mutually exclusive. This court has generally treated motions to suppress like other preliminary or in limine orders and held that an objection must also be made at trial in order to satisfy the requirements of K.S.A. 60–404, even though a pretrial ruling has been obtained. E.g., State v. Houston, 289 Kan. 252, 270–71, 213 P.3d 728 (2009).

In Houston, we explained the reasons for requiring an objection at trial, stating, in part:

“Among other advantages, this holding allows a court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared—after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41–42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (in limine ruling ‘is subject to change when the case unfolds').” Houston, 289 Kan. at 270, 213 P.3d 728.

We have also explained that a pretrial ruling is not sufficient because the “materiality of the proposed evidence may not become actually apparent until other evidence has been admitted.” State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989); but see State v. Hollingsworth, 289 Kan. 1250, 1260–61, 221 P.3d 1122 (2009) (Johnson, J., dissenting) (noting that K.S.A. 60–404 does not require a defendant to renew an objection at trial). In other words, a pretrial objection by itself is not timely because the evidence may be different from that submitted at the pretrial hearing or the evidence may be viewed differently by the judge in the context of all of the evidence and argument heard at trial.

As we explained in more detail in Bogguess, this court had not previously considered whether these same considerations apply when a case is tried on stipulated facts to a judge. We concluded they did not. In doing so, we explained that when a case is tried solely on stipulated facts, there is no basis for the judge to reconsider a pretrial ruling because the defendant has waived the right to dispute the evidence. Bogguess, 293 Kan. at 745, 268 P.3d 481 (citing State v. Downey, 27 Kan.App.2d 350, 359, 2 P.3d 191,rev. denied 269 Kan. 936 [2000] ). Hence, the trial judge does not have the opportunity to reconsider the pretrial ruling. Additionally, because no witness testifies, the evidence will not unfold in a manner different from that already considered. In essence, the record at the time of the threshold consideration is the only record that will be made on the issue. As a result, requiring a trial objection would be futile, and the pretrial objection is a timely interposed objection that is sufficient to preserve the issue for appeal under K.S.A. 60–404. Bogguess, 293 Kan. at 747, 268 P.3d 481.

At oral argument, the State recognized the recent holding in Bogguess but argued we should not extend the holding beyond the facts in that case or those in State v. Bastian, 37 Kan.App.2d 156, 150 P.3d 912 (2007), in which the Court of Appeals had reached the same holding as this court reached in Bogguess. There are three potential distinctions between Bogguess,Bastian, and this case: (1) in Bogguess and Bastian, one judge presided over both the pretrial motion to suppress and the trial...