State v. Elnicki
| Decision Date | 08 April 2010 |
| Docket Number | 987.,No. 96,96 |
| Citation | 228 P.3d 1087 |
| Parties | STATE of Kansas, Appellee/Cross-appellant, v. Justin D. ELNICKI, Appellant/Cross-appellee. |
| Court | Kansas Court of Appeals |
Gerald Wells and Kevin P. Shepherd, of Topeka, for appellant/cross-appellee.
Jason E. Geier, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, for appellee/cross-appellant.
Before McANANY, P.J., GREEN and MALONE, JJ.
Justin Elnicki was convicted of rape and aggravated criminal sodomy in 2002. The facts that led to Elnicki's convictions are detailed in the reported opinions in State v. Elnicki, 279 Kan. 47, 48-50, 105 P.3d 1222 (2005), and State v. Elnicki, 32 Kan.App.2d 266, 80 P.3d 1190 (2003). We need not repeat them here, other than to note that the 19-year-old victim testified that after she accepted Elnicki's offer for a ride he forced her to engage in fellatio and sexual intercourse. Elnicki contended that the victim engaged in consensual oral sex and became angry when he refused to pay her for her services.
The Kansas Supreme Court reversed Elnicki's convictions because of the erroneous admission of a videotaped interrogation during which the detective repeatedly commented on Elnicki's credibility and because of prosecutorial misconduct in the State's closing argument. Elnicki, 279 Kan. 47, 105 P.3d 1222. The case was remanded for a new trial.
While awaiting a second trial, Elnicki moved to dismiss based on a claimed violation of his statutory speedy trial rights after the mandate issued. His motion was denied. Elnicki was tried a second time. A further redacted version of Elnicki's videotaped interrogation was admitted into evidence. Elnicki was again convicted of rape, but acquitted of aggravated criminal sodomy.
Elnicki moved for a new trial and to recall jurors based on alleged juror misconduct. The district court found any juror misconduct was harmless, denied Elnicki's motion, and sentenced him to 618 months in prison. Elnicki appealed, raising the speedy trial issue, error in admission of the redacted videotape, and misconduct by jurors and by the prosecutor.
While Elnicki's appeal was pending before us, he moved for a remand to the district court pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for a hearing on his claim that his counsel at his second trial was ineffective. This court granted Elnicki's motion and remanded for a hearing pursuant to Van Cleave. Following that evidentiary hearing, the district court ordered a new trial, finding that Elnicki's counsel had been ineffective in failing to investigate and call new witnesses discovered after the first trial. The State has cross-appealed this ruling.
Thus, we have for review (1) the denial of Elnicki's speedy trial motion before his retrial, (2) the district court's order for a third trial based on Elnicki's counsel being ineffective at his second trial, and (3) claims of error arising during Elnicki's second trial.
Elnicki claims his statutory right to a speedy trial was violated when the State failed to bring him to trial within 90 days of the Supreme Court mandate following his first appeal. Elnicki contends K.S.A. 22-3402(1) was violated because the first continuance (from April 4, 2005, to June 20, 2005) was granted over his objection and should be charged to the State. See K.S.A. 22-3402(6). Because his June 20 trial date was more than 90 days after the mandate was filed with the district court on March 15, 2005, Elnicki claims the trial court erred in not dismissing the criminal charges against him. Elnicki also challenges the later continuances caused by the withdrawals of his various appointed counsel.
In resolving this issue our first task is to determine whether the factual basis for the district court's decision is supported by substantial competent evidence. Then we determine de novo whether those facts as a matter of law support the district court's legal conclusion. State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446 (2009).
On remand from the Supreme Court, the case was set for trial on April 4, 2005. At a hearing on March 31, 2005, the district court considered a motion to continue the April 4 trial date and, over Elnicki's objection, continued the trial to June 20, 2005. At a later hearing on Elnicki's motion to dismiss on speedy trial grounds, the prosecutor explained the background facts leading up to that March 31 hearing.
The prosecutor stated that when the Supreme Court's mandate was filed with the district court on March 15, 2005, ordering a new trial, the State was unsuccessful in attempting to meet with Elnicki's trial counsel to schedule a date for the retrial. Accordingly, the State on its own scheduled the case for trial on April 4, 2005. The prosecutor asserted that he had contacted all the witnesses and was fully prepared to try the case on April 4. However, during the week before March 31, the prosecutor and Elnicki's counsel met the court in chambers to schedule a hearing to address the issue of the trial date. According to the prosecutor, Elnicki's counsel expressed to the court that she had conflicting trial settings that would make it impossible to try the case on April 4. When the prosecutor recounted these facts at the hearing on Elnicki's motion to dismiss, Elnicki's counsel did not disagree with the prosecutor's description of the events leading up to the March 31, 2005, hearing.
On March 31, 2005, the district court continued the trial to June 20, 2005, "over the objection of the defendant." The record of this hearing does not disclose whether Elnicki's objection was to the continuance itself or to the date selected by the court. The record does show, however, the trial court's finding, recorded in the appearance docket, that the continuance to June 20, 2005, was due to the court's busy calendar.
K.S.A. 22-3402 provides, in part:
Elnicki's April 4, 2005, retrial date clearly was within 90 days of the mandate. Prior to the scheduled retrial the prosecutor and defense counsel determined that the April 4 trial date was inconvenient for Elnicki's counsel. The next available date on the court's calendar was June 20, 2005, well within the permitted 30-day extension of the 90-day deadline. The appearance docket indicates that the court invoked the exception under K.S.A. 22-3402(5)(d) and cited the court's calendar for the delay. Though no formal journal entry was filed, the entry on the appearance docket is proper evidence of the court's ruling. See State v. Kee, 238 Kan. 342, 355, 711 P.2d 746 (1985); State v. Rodriguez-Garcia, 27 Kan.App.2d 439, 441, 8 P.3d 3 (1999), rev. denied 269 Kan. 939 (2000). Setting the case for retrial on June 20, 2005, did not violate Elnicki's speedy trial rights. See State v. Clements, 244 Kan. 411, 414-15, 770 P.2d 447 (1989); State v. Lawrence, 38 Kan.App.2d 473, 480, 167 P.3d 794 rev. denied 286 Kan. 1183 (2007).
Elnicki contends Clements and Lawrence are not valid after the Supreme Court's decision in State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000). However, the facts in Hines are not on point. Unlike in Elnicki's case, the continuance in Hines was not based on K.S.A. 22-3402(5)(d).
In Hines, defense counsel asked for a continuance over the defendant's objection. No mention was made of the speedy trial deadline. The State had at least 18 days left of the speedy trial period, but the trial was scheduled on a date after that time. The Supreme Court determined that the mere request for a continuance did not waive the right to speedy trial by the defendant and nothing in the record supported a finding that the court's docket precluded resetting the trial within the remaining 18-day period. 269 Kan. at 703-04, 7 P.3d 1237. Unlike in Hines, the date for the new setting for Elnicki's trial was based on the unavailability of an earlier court date before expiration of the speedy trial period. Hines does not apply.
Elnicki also challenges the later continuances resulting from the withdrawal of his original attorney, Cindy Sewell. Trial was scheduled for June 20, 2005. On that date Sewell moved to withdraw because of a newly-discovered conflict. Following a discussion between Elnicki and his counsel, the court granted the motion and continued the case, charging the delay to Elnicki. The case was rescheduled for trial on September 12, 2005. Substitute counsel William Rork, and then substitute counsel Richard Lake, were both permitted to withdraw due to conflicts, leading to the appointment of attorney Richard Jones, who represented Elnicki at the September 2005 retrial.
Any delay caused by a change in defense counsel is properly chargeable to the defendant and does not count against the speedy trial deadline. State v. Timley, 255 Kan. 286, 294-96, 875 P.2d 242 (1994). Here, the failure of defense counsel to recognize the conflict between...
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