State v. Bolen

• Decision Date: 08 December 2000
• Docket Number: No. 83,679.,83,679.
• Citation: 13 P.3d 1270,270 Kan. 337
• Parties: STATE OF KANSAS, Appellee, v. DAVID E. BOLEN, Jr., Appellant.
• Court: Kansas Supreme Court

270 Kan. 337

13 P.3d 1270

STATE OF KANSAS, Appellee, v. DAVID E. BOLEN, Jr., Appellant.

No. 83,679.

Supreme Court of Kansas.

Opinion filed December 8, 2000.

Julie A. McKenna, county attorney, argued the cause, and Thomas R. Stanton, assistant county attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellant.

Patrick H. Dunn, assistant appellate defender, argued the cause, and Wm. Rex Larson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

The State of Kansas appeals the trial court's order dismissing all criminal charges against the defendant, David Bolen, with prejudice. The State contends that dismissal with prejudice is an extreme sanction which should only be employed in an extraordinary case against a prosecutor, and that the facts of this case did not require such a sanction. For reasons set forth in this opinion, we agree and reverse and remand for further proceedings.

FACTS:

David Bolen was arrested on December 13, 1998, after drugs were found in a car that he was driving. He was charged with one felony count of possession of cocaine, one felony count of possession of marijuana, one felony count of possession of drug paraphernalia, and one misdemeanor count of possession of a depressant, one felony count of driving while suspended, and one felony count of possession of cocaine without tax stamps. The matter was set for jury trial on March 2, 1999.

Approximately a week prior to the scheduled trial date, defense counsel advised the trial court and Assistant Saline County Attorney Thomas R. Stanton, assigned counsel for the State, that a motion to suppress would be filed. Counsel advised that the motion to suppress would in all likelihood be dispositive of the issues in the defendant's case. On March 1, 1999, the day before trial, the trial court continued the jury trial based on defense counsel's prior statement that a motion to suppress would be filed, and set the hearing on the motion to suppress for the next day. Later that day at approximately 3 p.m, the defendant filed his motion to suppress, alleging that the stop of the defendant's car was done without probable cause and that there existed no grounds to raise a reasonable suspicion of criminal activity. The defendant claimed that the search and seizure violated his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States.

At the hearing on the motion the next day, Assistant Saline County Attorney Tony White appeared in place of Stanton. White advised the trial court that the motion to suppress had been received at 3 p.m. the previous day and that Stanton had asked White to appear and seek a continuance on the case because the State had not had time to fully prepare.

The trial court stated that it did not understand the problem as Stanton was aware that a motion to suppress would be filed that would be dispositive of the case, and that the witnesses and evidence would be essentially the same as that which would be presented at the trial. The trial court also stated that Stanton had not advised the court that there was a conflict or anything that would prevent the motion from being heard.

White then advised the trial court that late on the previous afternoon, another attorney in the prosecutor's office who was handling a jury trial became sick, forcing Stanton to handle that case on this day. White also informed the court that he was not prepared to litigate the motion to suppress and that Stanton had already released the witnesses who would have testified at the motion to suppress in anticipation of a continuance being granted.

The trial judge stated that the matter was set and that no one had indicated that there would be a problem in proceeding. He also characterized Stanton's releasing of the witnesses as an "attempt to preempt the Court," which indicated to him that the State was not ready to proceed. The trial court noted that the motion to suppress was not complicated. The trial court then took the matter under advisement to allow White to go to another division and handle a plea in an unrelated case.

When White returned, the trial court made the following ruling:

"The Court has considered the situation here and I'm going to summarize it as I understand it. Counsel can correct me if I'm wrong. [Defense counsel] had previously advised the Court, and Mr. Stanton, who had been appearing as the State's assigned prosecutor in this case, that in lieu of the scheduled jury trial he would be filing a motion to suppress which would in all likelihood be dispositive of the issues in the case one way or another, that that motion was indeed filed late yesterday afternoon. It shows it was filed at three o'clock yesterday afternoon but that was not any type of a surprise to the State in this case. The Court would further find that while the motion does cover some three pages as represented, the actual factual issues are set forth rather succinctly, in about three paragraphs, or three or four paragraphs on the first page, the rest being boilerplate conclusions and boilerplate citations of authority which are well known to both experienced defense counsel and experienced prosecutors. There is no great amount of analysis or study required when the Court would consider that this case was at least theoretically ready for a jury trial at this time. All of the evidence that should have been known to the State, the witnesses were the same, it was just a little different type of presentation. The Court understands that apparently Ms. Trocheck, who was assigned to a jury trial in courtroom 304 is ill. Mr. Stanton opted to take over her case in courtroom 304 rather than to pursue this case. That being all well and good, this Court was not informed of that decision and there was no suggestion as to any need for or request for a continuance in this case. Mr. Stanton was in this courtroom as late as ten after five yesterday. We concluded a proceeding and he never mentioned anything about having a conflict or being unable to proceed on the motion to suppress this morning. The Court would note that Mr. Stanton was able to take over a jury trial on relatively short notice, that it was his responsibility to ascertain and—the availability of another attorney in his office, and Mr. White is indeed present and available and I'm finding it a little difficult to understand why the other appearing attorney couldn't proceed with a simple straightforward routine motion to suppress as scheduled.

"Further there is a reference that Mr. Stanton apparently called off the State's witnesses in anticipation of a continuance in this case. That was done without consulting the Court or requesting the Court or any suggestion to the Court with regard to any problem and it seems rather, to say the least, rather presumptuous to so do without some sort of consultation. I'm led to believe that apparently [defense counsel] was unaware that the matter was going to be requested for a continuance until he and his client appeared here this morning. I don't know what Mr. Bolen's employment status is but I presume that if he is employed he took leave from that employment to be here today. I presume that [defense counsel], like most attorneys these days, gets paid for his appearances in court. A simple courtesy to counsel and the defendant would have been to give them some prior notice. I understand also that at least one of the potential witnesses in this proceeding was not notified that appearance would not be necessary and is present. In all due respect this situation is just, I guess, a symbol of the fact that the wheels seem to be coming off the wagon here with regard to these last minute requests for continuances, the inability to proceed on matters and this reflects both on— not on [defense counsel] in this case, we're getting this from both sides of the fence, both from prosecutors and defense counsel. But in this case there is simply no—a simple matter of—of common courtesy would have—could have resolved and headed off this situation. This Court had no notice whatsoever. I was prepared to proceed, the defendant is here and prepared to proceed. The State is here not prepared to proceed on a matter in which the State has the burden of proof. The State brought criminal charges against this defendant and it is the State's responsibility to promptly and properly pursue those charges.

"The Court finds that the State has not promptly and properly pursued the prosecution in this case and the case is ordered dismissed without—or with prejudice and all matters set forth in the Complaint & Information herein for failure— as a sanction for failure to properly pursue the case and to properly notify counsel and the Court. The State's going to bring charges against them, then it's the State's responsibility to pursue the charges promptly and properly. The case is ordered, as I said, dismissed with prejudice."

On March 11, 1999, the State filed a motion for reconsideration of the dismissal, which was set for hearing on March 15, 1999. Stanton appeared on behalf of the State and recounted to the trial court that he had in fact personally informed the court after receiving the defendant's motion to suppress that there would be a problem with the schedule, although he admitted that the trial court's attention was "clearly divided" at the time. Stanton continued:

"There were three of us in the County Attorney's Office that day and there were again three of us the next morning, myself, Mr. Melton and Tony White. Obviously I

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