State v. Flynn, 82,983.

• Decision Date: 27 September 2002
• Docket Number: No. 82,983.,82,983.
• Citation: 274 Kan. 473,55 P.3d 324
• Parties: STATE OF KANSAS, Appellee, v. DANA LINN FLYNN, Appellant.
• Court: Kansas Supreme Court

274 Kan. 473

55 P.3d 324

STATE OF KANSAS, Appellee, v. DANA LINN FLYNN, Appellant.

No. 82,983.

Supreme Court of Kansas.

Opinion filed September 27, 2002.

Kurt P. Kerns, of Ariagno, Kerns, Mank & White, L.L.C., of Wichita, argued the cause and was on the briefs for appellant.

Chris E. Biggs, county attorney, argued the cause, and Robin Graham, assistant county attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

Per Curiam:

Dana Flynn appeals her jury convictions of first-degree premeditated murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury. Flynn raises the following issues: (1) The trial court erred in refusing to sever the conspiracy to commit perjury charge from the murder charges, (2) the State presented insufficient evidence to sustain its burden of proof, (3) prosecutorial misconduct denied her right to a fair trial, (4) the trial court admitted irrelevant inflammatory evidence, (5) the trial court improperly admitted hearsay evidence in violation of her rights under the Confrontation Clause of the United States Constitution, (6) cumulative trial error denied her right to a fair trial, and (7) the district court erred in refusing to grant her a new trial based upon newly discovered evidence. We consider and reject each of Flynn's claims, and affirm the jury convictions.

This appeal follows the jury convictions in a joint trial of Dana Flynn and Mikel Dreiling for the December 22, 1992, death of Randy Sheridan. The jury convicted Mikel of first-degree murder, conspiracy to commit murder, terroristic threat, and conspiracy to commit perjury. We do not recite the facts in this case; for a detailed statement of facts see the companion case of State v. Dreiling, 274 Kan. 518, 520-39, 54 P.3d 475 (2002).

Analysis

1. Failure to file a timely notice of appeal

Before reaching the merits of this appeal, we briefly pause to consider whether this case is properly before us because of an untimely filed notice of appeal.

"The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution [citation omitted] or the Kansas Constitution [citation omitted]. It is the established rule in this state that this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The Supreme Court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. [Citations omitted.]" State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994).

Because this crime was committed prior to July 1, 1993, Dana was required to file a notice of appeal within 130 days after the oral pronouncement of the sentence from the bench in open court. K.S.A. 22-3608(a); K.S.A. 2001 Supp. 21-4603. See State v. Ji, 255 Kan. at 102-04; State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). If the trial court receives a motion for modification within 120 days of the sentencing hearing, it has jurisdiction beyond the 120 days to decide the motion. Ji, 255 Kan. at 105; State ex rel. Owens v. Hodge, 230 Kan. 804, 814, 641 P.2d 399 (1982). In the event a motion to modify is filed, the triggering event is not the district court's ruling from the bench, but rather the filing of the journal entry. Ji, 255 Kan. at 112; State v. Myers, 10 Kan. App.2d 266, 270, 697 P.2d 879 (1985).

Dana failed to file a timely notice of appeal. She was sentenced on January 27, 1997. The trial court orally denied Dana's motion for modification of sentence on November 5, 1998, and memorialized its decision in its order filed November 10, 1998, which was further memorialized in its journal entry filed March 16, 1999. Dana's attorney filed the notice of appeal on January 11, 1999— almost 2 years after the oral sentencing and 2 months after the filing of the order denying the motion to modify. This court in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), held there are exceptions to the rule requiring a dismissal following an untimely filed notice of appeal: "where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal." There is authority for remanding this case for a hearing to determine whether the Ortiz exceptions apply. See State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994). However, this court has also held that the exceptions in Ortiz apply based on an affidavit alone, rather than a specific factual finding by the lower court. See State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994).

This court issued an order to show cause why the case should not be remanded to the district court for an Ortiz hearing. Dana responded and in her affidavit asserted that she wanted to appeal, that she instructed her attorney she wanted to appeal, and that she believed her attorney would file a timely notice of appeal. Under these circumstances, we find an Ortiz exception applies, and we will, therefore, consider Dana's appeal.

2. Failure to sever conspiracy to commit perjury charge from murder charges

Dana argues the trial court erred in joining the perjury charge with the murder charges in the same trial. Specifically, Dana argues she was prejudiced by the joinder because (1) the joinder allowed the "cross-admissibility" of evidence, i.e., evidence was admitted as to the perjury count that would otherwise have been inadmissible in a separate trial on the murder charges, and (2) the joinder of the perjury charge gave the State license to call Dana, Mikel, and members of their family liars.

K.S.A. 22-3202 provides:

"(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."

The standard of review is abuse of discretion. State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999). See State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 (1994) (holding that the defendant has the burden of showing prejudice requiring reversal); State v. Shively, 26 Kan. App.2d 302, 312, 987 P.2d 1119 (1999) (noting the "minimal" requirements for meeting the connection element of K.S.A. 22-3202[1]).

Connection between separate charges

In State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979), this court considered the appeal of the defendant who had been tried jointly on two separate district court cases—one case involved aggravated robbery and kidnapping, the other corruptly influencing a witness and unlawful deprivation of property. A trial on the first case ended in a mistrial, and the second case was not filed until after the first case had gone to trial. Upon retrial, the two cases were joined. The second case involved Moore's attempt to secure the false testimony of a witness to aid him in the defense of the first case. He argued that the court erred in consolidating the cases and that the consolidation "unduly prejudiced his defense." 226 Kan. at 749. The State argued that the joinder of the two cases was proper "because the defendant would not have committed the acts giving rise to the corruptly-influencing-a-witness charge but for the aggravated robbery and kidnapping charges." Thus, the State argued that the cases were "necessarily `connected' and properly joined for trial." 226 Kan. at 749.

The court held it was not an abuse of discretion to join the cases, since the two cases were sufficiently "connected together" under K.S.A. 22-3202 because the first case "precipitated the conduct" in the second case. 226 Kan. at 750.

In State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983), the court considered the defendant's convictions of aggravated assault of a law enforcement officer, unlawful possession of a firearm, burglary, and attempted murder. The aggravated assault of a law enforcement officer charge and the unlawful possession of a firearm charge arose out of an October 22, 1981, incident in which two undercover police officers tried to purchase drugs from the defendant. The defendant failed to appear for the trial on these two charges, then later the defendant tried to kill one of the undercover officers. The defendant argued the new charges of attempted murder and burglary and the prior charges were separate incidents and joinder would be prejudicial.

Relying on K.S.A. 22-3202, the court concluded:

"The case at bar is factually similar to the situation in Moore. Here the evidence presented by the State indicates the appellant wanted to kill Mullikin to prevent him from testifying at his trial for unlawful possession of a firearm and aggravated assault on a law enforcement officer. Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges. The charges arising out of the two incidents were properly consolidated for trial." 234 Kan. at 217.

In State v. Walker, 244 Kan. 275, 768 P.2d 290 (1989), the defendant was convicted of two counts of aggravated criminal sodomy and two counts of endangering a child, based on her abuse of her two stepsons. The defendant was also convicted of one count of making a terroristic threat. The threat charge arose out of her comments to a hospital social worker after she was not allowed to visit one of the victims, who had been admitted to a psychiatric hospital. The defendant argued the trial court erred in...