State v. Foster

Citation493 P.3d 283
Decision Date11 June 2021
Docket NumberNo. 122,048,122,048
CourtCourt of Appeals of Kansas
Parties STATE of Kansas, Appellee, v. Tony Lee FOSTER, Appellant.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Powell and Cline, JJ.

Cline, J.:

A jury convicted Tony Lee Foster of reckless murder in the second degree and criminal possession of a weapon. He raises three claims of reversible error in his direct appeal. First, he contends that the district court misused the "crowded docket" provision in Kansas' speedy trial statute to continue his trial. Second, he believes the district court erroneously admitted his interrogation video at trial. Finally, he raises a constitutional challenge to the statute underlying one of his convictions. We find the crowded docket provision encompasses situations in which the court continues a trial for reasons unrelated to a crowded docket but cannot reschedule it within the speedy trial deadline because of the court's crowded docket. We also find Foster has failed to preserve his remaining arguments for appellate review. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 2018, Shannon Allison was living in a garage at her mother's house in north Topeka. The house was unoccupied at the time. One of Allison's friends, David Payne, stopped by several times that day, looking for her ex-boyfriend, Joshua Anno. A few days earlier, Anno and Payne had discussed meeting up at Allison's so Anno could purchase a moped motor from Payne. During one of Payne's visits that day, he spent several hours removing a window air conditioner unit from the house so Allison could use it in the garage. Payne felt the garage where Allison was staying was too hot. After he removed the unit, Payne placed it on a chair in the garage.

Around midafternoon, Anno came by the house to mow the grass and meet up with Payne. When Anno arrived, no one was home. Allison returned just as he finished mowing. They both went inside the garage, at which point Anno fell asleep in a chair by the air conditioner. When Anno awoke, Foster was there, talking with Allison. Foster and Allison were in a dating relationship at the time, and they share children.

Soon after, Anno called 911 to report a shooting at the property. He denied knowing who the shooter was. Payne was the victim, and he died later that evening.

The police spoke to both Allison and Anno at the scene. Foster was not present. They told police they were in Allison's garage when they heard a pop outside. When they came out, they saw Payne on the ground. Both Allison and Anno said they did not see who shot Payne.

The police took Allison and Anno to the law enforcement center for further questioning. During transport, Anno told police he thought Foster may have shot Payne. When interviewed at the law enforcement center, Anno said he, Allison, and Foster were sitting in the garage when Payne approached outside. Anno called out to ask who it was, and Payne identified himself as "David." Foster asked if he was the same person who took an air conditioner unit out of the house. Anno then described Foster pulling out a revolver and firing one shot at Payne. Anno clarified he did not see the shooting because he was looking for his phone, but he saw Foster with a gun and heard him fire it. Anno ran outside and found Payne nonresponsive. Anno explained that he did not identify Foster as the shooter to the 911 operator because Foster was standing next to him when he called.

In her interview at the law enforcement center, Allison said she and Anno were in her garage when they heard a bang outside. She first said she did not know who shot Payne. After the detective said he knew Foster was in the garage, Allison admitted Foster was there and had arrived shortly before the shooting. At some point, Detective Jesse Sherer, who also interviewed Anno, entered Allison's interview. Detective Sherer asked Allison why Foster shot Payne. Allison said it was an accident, claiming, " 'He did not mean to.' " She said before the shooting, Foster asked whether Payne was the person who had caused problems over the air conditioner. Allison also admitted she grabbed the gun from Foster's hands before setting it on a bed.

Later that day, the police found Foster and arrested him. Detective Sherer interviewed Foster. At first, Foster denied knowing Payne or being present. When Detective Sherer told Foster witnesses placed him at the scene, Foster admitted he was with Allison in her garage when they heard a gunshot outside. He denied shooting Payne or possessing a gun.

The State charged Foster with intentional murder in the second degree or, in the alternative, reckless murder in the second degree. The State also charged Foster with one count of criminal possession of a firearm.

The parties appeared for trial on March 11, 2019. Upon their arrival, the district court informed them it had mistakenly failed to summon jurors for the week. Unfortunately, there were no available jury trial settings before Foster's speedy trial deadline of April 5, 2019. Relying on the crowded docket provision in K.S.A. 2020 Supp. 22-3402(e)(4), the district court continued the trial to April 8, 2019, over Foster's objection. When Foster's speedy trial deadline arrived, Foster moved to dismiss on speedy trial grounds. The district court denied the motion.

Before trial, Foster moved to preclude Detective Sherer's videotaped interview of Foster, which he characterized as "continually comment[ing] on the credibility of suspects and witnesses." The district court ordered the State to redact certain portions of the video but denied Foster's generic objection to the entire video.

Both Allison and Anno testified at trial that Foster shot Payne. Jeffrey Parsons, an inmate at the Shawnee County Jail, also testified for the State. Parsons testified that, the day after the shooting, Foster approached him and told Parsons that he " 'caught a bad motherfucker.' " Parsons explained that in jail this phrase means he "caught a bad case." Parsons testified Foster also told him that he shot someone and threw the gun by the house.

The jury found Foster guilty of reckless murder in the second degree and criminal possession of a weapon.

On appeal, Foster claims the crowded docket exception does not apply to his trial continuance, because the court continued the trial for lack of jurors, not a crowded docket. He also challenges the admission of his interrogation video, claiming it constituted impermissible comment on his credibility. Last, he raises a constitutional challenge to the statute underlying one of his convictions. We do not find Foster's arguments persuasive.

ANALYSIS

The district court properly used the crowded docket exception in the speedy trial statute.

Kansas law mandates that a defendant held in jail on criminal charges "be brought to trial within 150 days after such person's arraignment on the charge." K.S.A. 2020 Supp. 22-3402(a). Otherwise, the defendant "shall be entitled to be discharged from further liability to be tried for the crime charged." K.S.A. 2020 Supp. 22-3402(a). Kansas' speedy trial statute includes certain exceptions which toll this deadline. Here, the district court relied on the one commonly known as the "crowded docket" exception. This exception grants the district court a one-time opportunity to extend the time for trial when, "because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial." K.S.A. 2020 Supp. 22-3402(e)(4). A court may not delay a trial longer than 30 days under this provision. K.S.A. 2020 Supp. 22-3402(e)(4).

Foster's trial was originally set within his speedy trial deadline. Unfortunately, trial could not proceed as scheduled because the court failed to summon jurors. The court also could not commence Foster's trial before his speedy trial deadline of April 5, 2019, because of other matters already scheduled. Relying on the crowded docket exception, the district court extended the time for Foster's trial to April 8, 2019. This continuance was less than 30 days.

Foster claims the district court violated his statutory right to a speedy trial when it continued his trial beyond April 5, 2019. He argues the crowded docket exception applies only when the court's crowded docket is the reason for the continuance. We exercise unlimited review over a district court's legal rulings regarding violations of a defendant's statutory right to a speedy trial, as well as interpretation of statutes. State v. Vaughn , 288 Kan. 140, 143, 200 P.3d 446 (2009).

Sections (a) through (d) of K.S.A. 2020 Supp. 22-3402 establish specific deadlines for the court to bring a defendant to trial. Section (e) of K.S.A. 2020 Supp. 22-3402 balances those deadlines against the practical realities of litigation by recognizing four situations in which the court may extend those deadlines for limited periods of time. One of the situations the Legislature anticipated is a district court's crowded docket. Section (e)(4) tolls the speedy trial deadline for a short time (up to 30 days) when a court's docket cannot accommodate another trial setting within that deadline.

We decline to read this provision as narrowly as Foster advocates. The language of K.S.A. 2020 Supp. 22-3402(e)(4) is unambiguous. We cannot read words into the statute or delete them from it. In re Fairfield , 27 Kan. App. 2d 497, 499, 5 P.3d 539 (2000). The Legislature did not limit application of this provision to only those situations in which a court must continue a trial because of a crowded docket. If that were its intention, it might have said: "[B]ecause of other cases pending for trial, the court must continue the trial" or "the trial must be continued." Instead, it said: "[B]ecause of other cases pending for trial, the court does not have sufficient time to...

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4 cases
  • State v. Leija
    • United States
    • Kansas Court of Appeals
    • 4 February 2022
    ...which prohibited firearm possession), petition for rev. filed November 22, 2021; but see State v. Foster, 60 Kan.App.2d 243, 258-67, 493 P.3d 283 (2021) (Arnold-Burger, C.J, concurring) (applying the exceptions and evaluating the challenge to a conviction for criminal possession of a firear......
  • Jackson v. Coleman
    • United States
    • Kansas Court of Appeals
    • 1 October 2021
    ...any of them. And they don't readily apply if the essential facts are unproved or disputed. See State v. Foster, 60 Kan.App.2d 243, 254-55, 493 P.3d 283 (2021). We, therefore, decline to consider the fact-bound arguments Jackson offers us on appeal. They should have been presented to the dis......
  • Jackson v. Coleman
    • United States
    • Kansas Court of Appeals
    • 1 October 2021
    ...any of them. And they don't readily apply if the essential facts are unproved or disputed. See State v. Foster, 60 Kan.App.2d 243, 254-55, 493 P.3d 283 (2021). We, therefore, decline to consider the fact-bound arguments Jackson offers us on appeal. They should have been presented to the dis......
  • State v. Johnson
    • United States
    • Kansas Court of Appeals
    • 2 December 2022
    ...the same issue for the first time on appeal. State v. Foster, 60 Kan.App.2d 243, 254, 493 P.3d 283, rev. denied 314 Kan. 856 (2021). The Foster court said the defendant "offer[ed] conclusory analysis and provide[d] no legal support for his assertion" that the first two exceptions applied. T......

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