State v. Dumars

• Decision Date: 06 April 2007
• Docket Number: No. 96,261.,96,261.
• Citation: 154 P.3d 1120
• Parties: STATE of Kansas, Appellant, v. Wendy DUMARS, Appellee.
• Court: Kansas Court of Appeals

154 P.3d 1120

STATE of Kansas, Appellant, v. Wendy DUMARS, Appellee.

No. 96,261.

Court of Appeals of Kansas.

April 6, 2007.

Amy Hanley and Bobby J. Hiebert, Jr., assistant county attorneys, Ellen Mitchell, county attorney, and Phill Kline, attorney general, for the appellant.

Paige A. Nichols, of Lawrence, for the appellee.

Before RULON, C.J., MALONE and HILL, JJ.

RULON, C.J.

The State appeals the district court's refusal to permit retrial on defendant Wendy DuMars' drug-related offenses after this court reversed the defendant's convictions on the basis of cumulative trial error and remanded the case for new trial in State v. DuMars, 33 Kan.App.2d 735, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (DuMars I). The State contends the district court disregarded this court's mandate and that double jeopardy did not bar retrial of the defendant. The defendant responds that prosecution for the drug offenses is moot and the district court properly dismissed the charges on either double jeopardy or due process grounds. We reverse and remand for further proceedings.

The defendant was convicted by a jury of attempted manufacture of methamphetamine, two counts of possession of drug manufacturing paraphernalia, possession of methamphetamine, possession of marijuana, three counts of child endangerment, obstruction of official duty, and criminal use of a weapon. At trial, the defendant requested a mistrial on the basis of improperly admitted and prejudicial hearsay evidence. The district court denied the requested mistrial. The defendant renewed her argument in posttrial motions for judgment of acquittal and new trial, which were denied.

The defendant appealed her convictions for attempted manufacture of methamphetamine and possession of drug manufacturing paraphernalia and one of the convictions for child endangerment. This court concluded the defendant's trial had been prejudiced by cumulative errors involving the admission of hearsay evidence and multiple instances of prosecutorial misconduct. With respect to the prosecutorial misconduct, specifically, this court noted: (1) the prosecution elicited hearsay from witnesses on two occasions; (2) improperly created a negative inference from the defendant's invocation of her right to remain silent post-Miranda warnings; (3) undermined the weight the jury might have placed in the instruction requiring jury unanimity; and (4) misstated facts in closing arguments. DuMars I, 33 Kan.App.2d at 745-50, 108 P.3d 448.

Due to the deliberate and repeated nature of the prosecutorial misconduct, this court concluded the errors collectively worked to deny the defendant a fair trial. We further concluded the State had failed to present sufficient evidence to support the one child endangerment conviction challenged on appeal and ordered the conviction to be vacated. 33 Kan.App.2d at 756, 108 P.3d 448.

Accordingly, the DuMars I court remanded the case for a new trial only on the attempted manufacture of methamphetamine and possession of drug manufacturing paraphernalia charges. 33 Kan.App.2d at 757, 108 P.3d 448.

After the district court received the mandate of this court, the defendant filed an objection to the State's attempt to retry the drug-related offenses. After a hearing, the district court found double jeopardy had barred further prosecution of the defendant's convictions and refused to allow retrial. The State filed a timely notice of appeal.

APPELLATE MANDATE

The State primarily contends the district court had no authority to disregard this court's mandate and dismiss the methamphetamine-related drug charges against the defendant. When an appellate court has remanded a case for further proceedings consistent with its mandate, a district court is obliged to effectuate the mandate and may consider only those matters essential to the implementation of the ruling of the appellate court. A determination of the district court's compliance with an appellate court mandate constitutes a question of law over which this court possesses unlimited review. Edwards v. State, 31 Kan.App.2d 778, 780, 73 P.3d 772 (2003).

The appellate mandate rules are a subset of judicial policy regarding law of the case and are designed to implement consistency and finality of judicial rulings. State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998). Consequently, when a second appeal is brought in the same case, the first appeal is settled law regarding all questions actually decided, explicitly or implicitly, in the first appeal. 263 Kan. at 632, 952 P.2d 1326 (citing Waddell v. Woods, 160 Kan. 481, Syl. ¶ 3, 163 P.2d 348 [1934]).

Citing State v. Downey, 29 Kan.App.2d 467, 470-71, 27 P.3d 939, rev. denied 272 Kan. 1421 (2001), the State argues this court, by ordering a retrial on the drug-related convictions, implicitly rejected a double jeopardy bar to further prosecution. In Downey's direct criminal appeal, this court affirmed Downey's convictions but remanded the case for resentencing. On remand, however, the district court granted Downey's motion to set aside his convictions and ordered a new trial. The district court's ruling was based upon evidentiary stipulations that Downey had entered in his first trial. This court implicitly addressed the stipulations in Downey's direct appeal, concluding that Downey waived any defect in the admission of such stipulations by failing to object at trial. When the State appealed the order setting aside the convictions, this court ruled the district court had violated the mandate of the appellate court by considering Downey's arguments related to his convictions. 29 Kan.App.2d at 470-72, 27 P.3d 939.

Downey is distinguishable from this case. In Downey, the district court was presented with a mandate permitting consideration only of sentencing issues, yet the district court exceeded the scope of the mandate to consider Downey's argument related to his convictions. Moreover, Downey's trial issues on remand undermined a specific issue considered and rejected by this court, i.e., the propriety of the admission of evidence by stipulation. In contrast, here, this court specifically reversed two of the defendant's convictions and ordered a new trial on those convictions in DuMars I. However, this court did not specifically address the defendant's double jeopardy claim, and the claim is not inconsistent with this court's ruling in DuMars I.

"Where the mandate of an appellate court merely reverses a ruling of the district court and remands the case for further proceedings but does not direct the judgment of the district court, the district court has discretion to preside over the remaining trial proceedings, as if the district court had originally made the ruling mandated by the appellate court. [Citation omitted.] In other words, a district court may address those issues necessary to the resolution of the case that were left open by the appellate court's mandate. [Citations omitted.]" Edwards, 31 Kan. App.2d at 781, 73 P.3d 772.

In DuMars I, this court reversed the drug-related convictions for trial error and remanded the case for further proceedings. The district court was in the same position following remand as if the district court had granted the defendant's motion for a new trial on a similar basis. Under the circumstances, the district court possessed the authority to consider the defendant's double jeopardy claim without violating the appellate court's mandate.

MOOTNESS

The defendant initially contends the State's appeal is moot because prosecution of the attempted manufacture and possession of drug paraphernalia charges will not serve any legitimate interest of the State in obtaining convictions. The defendant argues she has completely served any sentence which might be imposed after conviction and a conviction for the additional drug-related crimes will not affect the defendant's criminal history score.

An appellate court does not decide moot questions or render advisory opinions. The rule is based upon a judicial policy of adjudicating only real controversies relative to the legal rights of persons and property involved in a particular case so that the judicial determination will possess operative and conclusive effect. Skillett v. Sierra, 30 Kan.App.2d 1041, 1046, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002) (citing Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]).

Mootness is not a question of jurisdiction, and the courts have routinely acknowledged two exceptions to the rule. First, where a judgment is not enforceable only because of lapse of time or other changed circumstances and where dismissal of an issue will adversely affect rights vital to one of the parties, a court may address the issue. Skillett, 30 Kan.App.2d at 1046-47, 53 P.3d 1234 (citing Gonzales v. State, 11 Kan. App.2d 70, 71, 713 P.2d 489 [1986]). Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue. Skillett, 30 Kan.App.2d at 1048, 53 P.3d 1234.

Although Kansas appellate courts have not had an occasion to consider the mootness question in the context of a State's appeal, this court has considered whether a criminal defendant's appeal of a conviction becomes moot when the defendant has served the entire sentence imposed. See State v. Flanagan, 19 Kan.App.2d 528, Syl. ¶ 1, 873 P.2d 195 (1994).

"[W]e hold that a criminal contempt conviction does not become moot because a defendant may have served his or her time on that conviction. We recognize that the judicial system is an integral part of American life, and a criminal contempt conviction cannot help but affect a defendant's life if he or she appears before a judge who becomes aware of that conviction. That fact, and other possible collateral consequences of this conviction, are too obvious to declare this appeal moot simply because defendant cannot be subjected to additional jail time." 19 Kan.App.2d...