State v. Collier

• Decision Date: 23 January 1998
• Docket Number: No. 76989,76989
• Citation: 263 Kan. 629,952 P.2d 1326
• Parties: STATE of Kansas, Appellee, v. Jeffrey S. COLLIER, Appellant.
• Court: Kansas Supreme Court

Page 1326

952 P.2d 1326

263 Kan. 629

STATE of Kansas, Appellee, v. Jeffrey S. COLLIER, Appellant.

No. 76989.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. When the hard 40 sentence in State v. Collier 259 Kan. 346, 913 P.2d 597 (1996) (Collier I ), was vacated, such ruling became the settled law of this case. Thus, the issue of the filing of the notice may not again be relitigated, nor may the nonexistent record in Collier I regarding the filing be created.

2. The doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts.

3. When a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions. Ordinarily, under the law of the case doctrine, once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice.

4. It is axiomatic that on remand for further proceedings after a decision by an appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. A trial court must implement both the letter and spirit of the mandate, taking into account the appellate court's opinion and the circumstances it embraces.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs for appellant.

David Lowden, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

LARSON, Justice:

This is a sentencing appeal. In the previous appeal in this case, State v. Collier, 259 Kan. 346, 913 P.2d 597 (1996) (Collier I ), we affirmed Collier's convictions but vacated the hard 40 sentence for his premeditated first-degree murder conviction because the record did not reflect that the mandatory notice that the State would seek the hard 40 penalty was properly filed with the court at the time of arraignment as required by K.S.A.1993 Supp. 21-4624.

Upon remand, the State, over Collier's specific objection, was allowed to present testimony of the prosecuting attorney, the district judge who presided at the arraignment, a clerk of the court, and the chief deputy of the criminal department as to their recollections of the filing of the notice to request the hard 40 sentence and the usual procedures for the filing of documents in the trial court.

After hearing the evidence, the trial court found the notice of intent to seek the hard 40 sentence had been properly filed with the court. It then reimposed the hard 40 sentence, as well as the aggravated robbery sentence which had been imposed in Collier I but had not been an issue in that appeal.

Collier's appeal in this case is limited to sentencing issues only. He contends: (1) Reimposition of the hard 40 sentence contravened the decision and mandate in Collier I in violation of due process of law under the Fourteenth Amendment and the double jeopardy clause of the Fifth Amendment to the United States Constitution, plus the principles of res judicata and collateral estoppel; (2) the trial court erred by concluding the evidence presented at the resentencing hearing supported a finding that the State had complied with the notice provisions of K.S.A.1993 Supp. 21-4624; (3) the hard 40 sentence was imposed without notice or the procedural protections of K.S.A.1993 Supp. 21-4624; and (4) the State cannot seek, nor the trial court impose, an upward departure sentence for Collier's aggravated robbery conviction because such a departure was not sought at the original sentencing hearing and the aggravated robbery sentence was never vacated.

We need not here restate the entirety of the majority decision in Collier I on the sentencing issue which is found in 259 Kan. at 360-65, 913 P.2d 597. In a nutshell, we there held: (1) The record in Collier I did not show that the notice to request imposition of the hard 40 sentence was filed with the court at the time of arraignment; (2) the State improperly attempted to supplement the record under Supreme Court Rule 3.04 (1997 Kan. Ct. R. Annot. 23) and asked us to base our decision on matters outside a properly preserved record; (3) Collier I was controlled by our decision in State v. Peckham, 255 Kan. 310, 875 P.2d 257 (1994); and (4) the failure of the State to comply with the requirements of K.S.A.1993 Supp. 21-4624 required the hard 40 sentence entered therein to be vacated.

Although Collier makes the arguments previously summarized concerning violations of due process, double jeopardy, res judicata, and collateral estoppel, this case is more readily decided on the basis of his argument that when the hard 40 sentence in Collier I was vacated, such ruling became the settled law of this case. Thus, the issue of the filing of the notice may not again be relitigated, nor may the nonexistent record in Collier I regarding the filing be created by the May 1996 recollections of the events by several participants at the November 1993 arraignment which were not shown by the record.

The law of the case doctrine has long been applied in Kansas and is generally described in 5 Am.Jur.2d, Appellate Review § 605 in the following manner:

"The doctrine of the law of the case is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so. This rule of practice promotes the finality and efficiency of the judicial process. The law of the case is applied to avoid indefinite relitigation of the same issue, to obtain consistent results in the same litigation, to afford one opportunity for argument and decision of the matter at issue, and to assure the obedience of lower courts to the decisions of appellate courts."

Historically, the law of the case doctrine was first stated by the United States Supreme Court in Himely v. Rose, 9 U.S. (5 Cranch) 313, 3 L.Ed. 111 (1809), where it was applied to assert that the Court would not revisit issues which were finally decided by it in a previous appeal. Another United States Supreme Court case linked to the origins of the law of the case doctrine is Skillern's Ex'rs v. May's Ex'rs, 10 U.S. (6 Cranch) 267, 3 L.Ed. 220 (1810), which applied the rule to declare that once issues are finally decided, the lower court has no choice but to follow the mandate of the Court.

The doctrine has similarly long been the law of Kansas and was explained and adopted in Headley v. Challiss, 15 Kan. 602, 605-06 (1875), where Justice Brewer stated:

"This is a proceeding in error to review the decision of the district court overruling a motion to set aside a judgment. The judgment was rendered in an action to foreclose a mortgage, and upon service only by publication.... (Challiss v. Headley, 9 Kan. 684.) Upon abundant authority, and well-settled principles, the decision at that time has become the established law of the case.' [Citations omitted.] Whatever therefore, was at that time decided, is not now a matter for reexamination."

In applying this rule, this court shortly thereafter stated in Central Branch U.P.R. Co. v. Shoup, 28 Kan. *394, Syl. p 2 (1882), that the law of the case was not "a cast-iron rule, incapable of relaxation under any circumstances, yet it must be adhered to where the question is one of great doubt, has been thoroughly considered, and is one whose decision involves no serious injury to general rights."

While the law of the case rule is not inflexibly applied to require a court to blindly reiterate a ruling that is clearly erroneous, see Henry v. Railway Co., 83 Kan. 104, 109 P. 1005 (1910); Railway Co. v. Merrill, 65 Kan. 436, 70 P. 358 (1902), a majority of this court remains convinced that Collier I was properly decided, and a unanimous court holds a hard 40 sentence in this case may no longer be considered or imposed.

The cases stating this rule are legion in number, and the rule has been applied in many Kansas cases. In Waddell v. Woods, 160 Kan. 481, Syl. p 3, 163 P.2d 348 (1945), we held that when a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions.

In Bartlett v. Davis Corporation, 219 Kan. 148, 153, 547 P.2d 800 (1976), the court relied on Waddell v. Woods and stated:

"[W]hen a second appeal in the same action is brought to this court, the first decision is the law of the case on all questions involved and decided in the first appeal and such questions will not be reconsidered. However, when this court, upon appeal, merely reverses a district court on its ruling in connection with a motion to dismiss or for summary judgment, and no judgment is directed, the effect of the ruling by this court is the same for the purpose of further proceedings in the district court, as if the district court had made the correct ruling in the first instance, except, of course, that the district court has no authority to change or modify the ruling made by this court."

Confusion at times arises as to whether the doctrine being applied is the law of the case or res...