State v. Bailey
| Decision Date | 10 June 2022 |
| Docket Number | 123,613 |
| Citation | 510 P.3d 1160 |
| Parties | STATE of Kansas, Appellee, v. Brian BAILEY, Appellant. |
| Court | Kansas Supreme Court |
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, was on the briefs for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Brian C. Bailey appeals the district court's summary denial of his petition for forensic deoxyribonucleic acid (DNA) testing of biological material from a rape kit. Bailey brings this appeal under K.S.A. 2020 Supp. 21-2512 more than three decades after a jury convicted him of aggravated criminal sodomy in 1988. Before this current proceeding, Bailey twice sought forensic DNA testing, and both times the district court denied his motion. He did not appeal one of those orders but appealed the second and lost on appeal. Given these prior proceedings and court orders, the State argues application of res judicata principles prevents Bailey from relitigating the issues he raises on appeal. We agree and affirm the district court.
In 1988 CR 586, the State charged Bailey with two counts of aggravated criminal sodomy for his role in an incident in the Wyandotte County jail. The State alleged that Bailey and others attacked and sodomized another inmate.
At trial, the main evidence against Bailey was testimony from the victim and others who identified Bailey as one of the perpetrators. A crime investigator also testified. He told the jury that the victim was taken to a hospital where a forensic examination rape kit was completed. The State presented no other evidence about the kit or any examination of it. A Wyandotte County jury convicted Bailey.
Since then, Bailey has filed several postconviction motions or petitions, including at least three related to his attempt to obtain postconviction forensic DNA testing. In each of the three proceedings related to DNA testing, he has cited K.S.A. 21-2512, as authority for the district court to order the testing. K.S.A. 2020 Supp. 21-2512(a) sets out circumstances under which the statute allows postconviction DNA testing.
He filed the first motion in 2005. He labeled the motion as one to correct illegal sentence, and he filed it in his underlying criminal case, 1988 CR 586. The district court judge denied the motion. The judge explained: Bailey filed a notice of appeal but did not follow through and pursue the appeal.
About five years later, Bailey filed the second motion related to DNA testing. He again filed the motion in 1988 CR 586, and this time labeled it as "Motion for Availability of Other Relief Pursuant to K.S.A. 60-2606." In it, he requested an evidentiary hearing to explore whether the DNA evidence could be located or, alternatively, to determine what happened to the DNA evidence collected in 1988. If the evidence could not be located, he asked the judge to vacate his conviction.
The State responded by saying it had "reviewed the State's file in this matter and noted that the rape kit that had been taken from the victim during the investigation had been sent to the Kansas Bureau of Investigation [KBI] for testing in 1988." The State provided KBI lab reports, which document that the KBI testing found no seminal fluid or any foreign hairs. The State explained that the KBI also reported it no longer had possession of the evidence and only had a blood sample from the victim and that the Wyandotte County Sheriff's Department once again checked its evidence room and determined it had no evidence associated with the case. The written response added that "the State does not know what the disposition of the rape kit was other than it is not in the two department's [sic ] possession."
The district court appointed counsel for Bailey and held a hearing. Following the hearing, the district court judge denied the motion. In doing so, the judge found that a rape kit had existed at one time, but neither the prosecutor's office nor any law enforcement agency currently had the kit. The judge also found no evidence showed the State had lost or destroyed evidence in bad faith. Finally, citing the KBI laboratory report, the judge found the samples collected and examined by the KBI included nothing that could be tested for DNA.
Bailey appealed, and the Court of Appeals affirmed the denial of Bailey's second motion. State v. Bailey , No. 106,655, 2013 WL 195185 (Kan. App. 2013) (unpublished opinion). In concluding its discussion, the Court of Appeals summarized three reasons Bailey's motion failed. First, "[a]ny testing with today's technology would still be futile because there is no evidence in the rape kit from which a genetic profile on anyone else could be obtained." Second, the court held this meant no test could either implicate or exonerate Bailey. Third, the court cited Arizona v. Youngblood , 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), for its holding that the failure of police to preserve potentially useful evidence is not a denial of due process of law unless the defendant can show bad faith by police. The court then held that law enforcement could not have acted in bad faith in destroying or failing to preserve the rape kit, because the KBI had determined there was no biological material to test for DNA. 2013 WL 195185, *2. The Court of Appeals issued a mandate after Bailey's time to request this court's review of the decision had passed.
About seven years later, Bailey filed a "Petition for DNA testing Pursuant to K.S.A. § 21-2512 (2020)" that has led to the current appeal. He filed it under a new case number in district court but noted it related to 1988 CR 586. At the district court, the State argued Bailey could not establish the required conditions for postconviction DNA testing under K.S.A. 2020 Supp. 21-2512(a). In doing so, it repeatedly pointed out that the parties had litigated in other proceedings whether Bailey's situation met the statutory criteria and each time the district court had determined Bailey was not entitled to testing under the statute.
The district court denied the motion, and Bailey appealed directly to this court under K.S.A. 2020 Supp. 22-3601(b)(3) ().
Bailey raises several arguments, but our threshold consideration arises from the State's contention that res judicata principles preclude this appeal. Res judicata is one of three doctrines—the other two being law of the case and collateral estoppel—that put into practice the policy that courts generally will not reopen matters already decided by a court. State v. Collier , 263 Kan. 629, 631, 952 P.2d 1326 (1998). While differences exist between the three doctrines, each of them has the same effect of allowing one opportunity for argument and decision while avoiding relitigation of the same issue by the same parties. 263 Kan. at 631, 952 P.2d 1326. Collectively, these doctrines are often called " ‘preclusionary doctrines.’ " 263 Kan. at 634, 952 P.2d 1326.
The State's res judicata argument relates to the effect of the prior rulings by the district court and the Court of Appeals about Bailey's prior requests for postconviction DNA testing. Again, Bailey made those requests through his two motions filed in the criminal case. Now, Bailey brings his third request for testing, this time in a separate case that began with his petition under K.S.A. 2020 Supp. 21-2512. While filed in different cases and under different procedural statutes, in each Bailey has invoked K.S.A. 2020 Supp. 21-2512 as the basis for his right to obtain postconviction DNA testing. Despite the different procedural forms, the State argues under the doctrine of res judicata Bailey cannot relitigate the prior determinations that he cannot meet the threshold requirements of K.S.A. 2020 Supp. 21-2512(a).
In the earliest proceeding in which Bailey invoked K.S.A. 2020 Supp. 21-2512, the district court held there is no biological material in the possession of the State, and thus K.S.A. 2020 Supp. 21-2512 does not apply. See K.S.A. 2020 Supp. 21-2512(a)(2). Bailey did not appeal that ruling. And in the second proceeding, the district court made the same finding, and the Court of Appeals affirmed that holding. Bailey , 2013 WL 195185, at *2. Given that history, the State argues Bailey cannot relitigate these issues here.
In response, Bailey argues the State cannot raise res judicata for the first time on appeal. He also argues the current "DNA motion is not the same claim brought in the prior actions, as those were specifically made for different relief." He notes the first motion was one to correct an illegal sentence and the second sought relief from his conviction. Finally, he argues no court has resolved the factual underpinnings of the issues. We reject Bailey's arguments and conclude res judicata principles preclude this appeal.
We first examine whether the failure to raise the issue at the district court precludes our consideration, and we hold it does not. Granted, the general rule is that appellate courts consider only those matters the parties raised in the district court. See State v. Puckett , 230 Kan. 596, 598, 640 P.2d 1198 (1...
To continue reading
Request your trial
-
Campbell v. State
...already resolved by an appellate court, we affirm the district court's summary denial of his 60-1507 motion based on res judicata. Bailey, 315 Kan. at 802. Atcheson, J., concurring: I agree both that Robert Campbell Jr. gets no relief on his motion for habeas corpus relief under K.S.A. 60-1......
-
State v. Parkins
... ... orders are not usually considered. Wilkerson v ... State , 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007) ... (issues relating to conviction or underlying sentence should ... not be considered in appeal of probation revocation); see ... State v. Bailey , 315 Kan. 794, 799, 803, 510 P.3d ... 1160 (2022) (res judicata applies to issues previously raised ... and those that could have been raised but were not raised) ... Consequently, because Parkins did not file a direct appeal ... from either of the orders to register under ... ...