State v. Boling

• Decision Date: 19 September 1980
• Docket Number: No. 51305,51305
• Parties: STATE of Kansas, Appellant, v. Richard R. BOLING, Appellee.
• Court: Kansas Court of Appeals

Page 102

617 P.2d 102

5 Kan.App.2d 371

STATE of Kansas, Appellant, v. Richard R. BOLING, Appellee.

No. 51305.

Court of Appeals of Kansas.

Sept. 19, 1980.

Syllabus by the Court

1. Appellate jurisdiction is a matter of statute. It is the duty of an appellate court on its own motion to raise the question of its jurisdiction, and when the record discloses a lack of jurisdiction it must dismiss the appeal.

2. Piecemeal appeals are frowned upon in this state. This is particularly true in criminal cases, where the defendant's constitutional right to a speedy trial is implicated.

3. Under K.S.A. 1979 Supp. 22-3603 the state may take an interlocutory appeal from only certain pretrial rulings, including orders "suppressing evidence."

4. There is a distinct dichotomy between evidence excluded from the trier of fact because of its lack of probative value or unreliability to aid in the truth seeking process and evidence excluded because its "suppression" is apparently necessary to protect the constitutional rights of an accused or to deter official misconduct.

5. An interlocutory appeal by the state will lie from an order "suppressing" evidence on constitutional grounds or as a sanction for official "misconduct," but not from an order excluding evidence on grounds based on the rules of evidence, such as lack of relevance or materiality.

6. In an interlocutory appeal by the state from a pretrial ruling excluding "other crimes" evidence to be offered under K.S.A. 60-455, based on a finding that the prejudicial effect of the evidence would outweigh its relevance and materiality, it is held : the order was not one "suppressing evidence" under K.S.A. 1979 Supp. 22-3603 and this court has no jurisdiction.

William J. Walsh, Associate County Counsel, Concordia, and Larry S. Vernon, County Atty., for appellant.

Robert H. Meyer, Mankato, and Lawrence R. Uri, Jr., of Baldwin, Paulsen & Buechel, Chartered, Concordia, for appellee.

Max G. Moses, Executive Director, Kansas County and Dist. Attys. Association, Topeka, Robert T. Stephan, Atty. Gen., and Elsbeth D. Schafer, Asst. Atty. Gen., Topeka, for amicus curiae.

Before FOTH, C. J., and SPENCER and SWINEHART, JJ.

FOTH, Chief Judge:

This is an interlocutory appeal by the state from a pretrial ruling that evidence of "other crimes," to be offered by the state under K.S.A. 60-455, would not be admitted at trial. We conclude we do not have jurisdiction of the appeal and therefore dismiss it.

The trial defendant faces will be his second. He was originally tried in March, 1979, on six counts of indecent liberties with a child: one by lewd fondling or touching under K.S.A. 1979 Supp. 21-3503(1)(b ), and five by sexual intercourse under K.S.A. 1979 Supp. 21-3503(1)(a ). All counts involved the same young girl. He was acquitted of the five counts involving intercourse, but the jury was unable to agree on the lewd fondling count. A mistrial was declared as to that count and the matter was set for retrial.

Before the first trial the state had filed a motion to determine the admissibility of its proposed 60-455 evidence, consisting of testimony of several other young girls as to alleged advances made on them by the defendant. A pretrial hearing was held pursuant to State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), and the evidence was admitted at the first trial.

Before the second trial a pretrial conference was conducted. No motions were filed by either the state or the defendant, but the court orally ruled that the evidence of other alleged acts of misconduct would not be admitted because it would have a prejudicial effect far outweighing any relevance to the remaining charge. It is from this ruling that the state appeals.

Although the question of jurisdiction was not raised by the parties in their original briefs, this court issued a show cause order raising it. Responses were filed and decision was postponed to the hearing on the merits. The parties were authorized to file additional briefs, but only the brief of the Kansas County and District Attorneys Association, as amicus curiae, addresses the jurisdictional issue. All this was done pursuant to a familiar rule of appellate procedure:

"Appellate jurisdiction is a matter of statute. It is the duty of an appellate court on its own motion to raise the question of its jurisdiction, and when the record discloses a lack of jurisdiction it must dismiss the appeal." Henderson v. Hassur, 1 Kan.App.2d 103, Syl. P 1, 562 P.2d 108 (1977); see Meddles v. Western Power Div. of Central Tel. & Utilities Corp., 219 Kan. 331, Syl. P 1, 548 P.2d 476 (1976).

Piecemeal appeals are frowned upon in this state. Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964). This is particularly true in criminal cases, where the defendant's constitutional right to a speedy trial is implicated. See State v. Ramirez, 175 Kan. 301, 309, 263 P.2d 239 (1953). If we are to have jurisdiction, it must be under K.S.A. 1979 Supp. 22-3603:

"When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal." Emphasis added.

The question is whether an order excluding other crimes evidence is an order "suppressing evidence" under 22-3603.

The statute is relatively new, appearing for the first time as part of the 1970 Code of Criminal Procedure. Prior to that time appeals by the state were limited to those specified in G.S. 1949 62-1703, whose substance is now found in K.S.A. 1979 Supp. 22-3602. Interlocutory appeals were not permitted. State v. Ramirez, 175 Kan. 301, Syl. P 2, 263 P.2d 239. The new statute, by permitting review before trial, eliminates the double jeopardy problems arising where the state secures a reversal of a trial court's evidentiary ruling, but only after trial and acquittal. Its purpose is described by the Judicial Council comment to the statute:

"The foregoing sections are intended to permit Supreme Court review of trial court rulings on pretrial motions which may be determinative of the case. The committee believed that in the case of trial court rulings which suppress evidence essential to proof of a prima facie case, the prosecution should have an opportunity for review in the Supreme Court if a substantial question exists as to the correctness of the trial court's decision." Emphasis added.

The comment, like all Judicial Council comments, is persuasive as to legislative intent. Cf. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, Syl. P 4, 610 P.2d 1107 (1980). It was relied on by our Supreme Court in upholding the constitutionality of the statute in State v. Burnett, 222 Kan. 162, 166-7, 563 P.2d 451 (1977):

"K.S.A. 22-3603 provides for interlocutory appeals by the state in certain limited circumstances : where, prior to the commencement of a criminal trial, a warrant or search warrant is quashed, or where evidence, a confession or an admission is suppressed. As the note of the Judicial Council appended to this statute observes, the purpose of this section is to permit appellate review of pretrial rulings which may be determinative of the case. If the trial court suppresses essential evidence, an appeal by the state after trial and acquittal would resolve the legal questions-but the double jeopardy clause would bar retrial.

"The distinction between the state and the accused is not unreasoned. It serves a valid and legitimate public purpose to permit the state access to appellate review when matters essential to a prosecution are quashed or suppressed prior to trial. An individual defendant, unlike the state, may secure complete appellate review of all adverse rulings, and may secure effective relief, through a single appeal after trial, without constitutional impediment." Emphasis added.

We do not mean to suggest that whether the evidence suppressed is essential to the state's case determines whether an appeal will lie. However, it does appear that ordinarily when an order is made which actually "suppresses" evidence, the evidence will be of a kind which is sufficiently important to the prosecution to warrant an immediate appeal even though, under K.S.A. 22-3604, the defendant is free of any restraint until the appeal can be determined. To find what an order "suppressing" evidence is, we first look elsewhere in the Code.

The term is found in two other places: K.S.A. 22-3215 authorizes a pretrial motion to "suppress" a confession or admission; K.S.A. 22-3216 authorizes a pretrial motion to "suppress" illegally seized evidence. Clearly, if either motion is sustained the damage to the state's case will ordinarily be great; just as clearly, the state is authorized to take an immediate interlocutory appeal. Those two statutes, together with K.S.A. 1979 Supp. 22-3603, provide an integrated statutory scheme for dealing with important-indeed essential-evidentiary rulings on issues having constitutional dimensions. The scheme does not envision an interlocutory appeal on every run-of-the-mill evidentiary ruling against the state, even though made before trial.

Our view finds support in the derivation of the three statutes. The Judicial Council comment to K.S.A. 22-3216 indicates a borrowing from Montana. That state has similar provisions for pretrial suppression hearings on confessions and on illegally seized evidence. Mont.Rev. Codes Ann. §§ 95-1805 and 95-1806, now Mont. Code Ann. (1979) §§ 46-13-301 and 46-13-302. Its appeal statute, formerly Mont.Rev. Code Ann. § 95-2403(b)(5), now Mont. Code Ann. (1979) § 46-20-103(2)(e), authorizes an appeal by the state from an order "suppressing evidence." It has been construed to authorize interlocutory...