State v. Mburu

• Citation: 346 P.3d 1086,51 Kan.App.2d 266
• Decision Date: 13 March 2015
• Docket Number: 111,797.
• Parties: STATE of Kansas, Appellant, v. David Mbugua MBURU, Appellee.
• Court: Kansas Court of Appeals

51 Kan.App.2d 266
346 P.3d 1086

STATE of Kansas, Appellant
v.
David Mbugua MBURU, Appellee.

111,797.

Court of Appeals of Kansas.

March 13, 2015.

Alex M. Scott, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, for appellee.

Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.

Opinion

ARNOLD–BURGER, J.

David Mbugua Mburu is charged with the refusal to submit to alcohol or drug testing at a time when he had a prior driving under the influence (DUI) conviction or diversion. See K.S.A.2013 Supp. 8–1025(a)(2). Mburu stipulated to a prior DUI conviction; however, the district court determined that the stipulation would not be presented to the jury because its prejudicial effect outweighed its probative value. Instead, the district court determined that it would provide the jury with an elements instruction that excluded the stipulated element. The State filed this interlocutory appeal, asserting that the district court must allow Mburu's stipulation to be presented to the jury because it is an element of the crime. In response, Mburu asserts that this court does not have jurisdiction to hear the State's appeal because the State is unable to show that the prosecution would be substantially impaired by the court's ruling. Moreover, Mburu asserts that even if this court does have jurisdiction, the district court did not err in suppressing the stipulation. Having carefully considered the record and the briefs, we find that we have jurisdiction to consider this appeal and that the court abused its discretion when it held that it was not going to provide the stipulation to the jury. We reverse and remand.

51 Kan.App.2d 268

Factual and Procedural History

A man identified as Mburu was allegedly driving erratically in Johnson County, Kansas. A witness reported the erratic driving and followed Mburu until he stopped and parked his car. When officers arrived at the scene, Mburu was stumbling, his speech was slurred, and he smelled of alcohol. In addition, an empty bottle of vodka and an empty bottle of beer were found in his vehicle. Mburu refused to take a preliminary breath test.

Mburu was charged with one count of felony DUI, one count of refusing a preliminary breath test, one count of refusing to submit to other tests at a time when he has a prior conviction for DUI, and one count of driving without an ignition interlock device.

Mburu filed a motion in limine in which he requested to stipulate to his prior DUI convictions, but the stipulation would only be submitted to the district court. Mburu also asked for an order preventing the State from

346 P.3d 1089

presenting such evidence to the jury, reasoning that because his prior conviction was an element of the charged crime and his stipulation to the element relieved the State of its burden to prove that element, then there is no justifiable reason to present such evidence to the jury.

The State countered that it was willing to accept Mburu's stipulation, but it wanted to present the stipulation to the jury because every element of the crime had to be proven to the jury and the State was not willing to waive a jury trial on any element of the crime charged.

Initially, the district court determined that the State could present evidence of Mburu's prior DUI convictions. However, on the day of trial, the district court reversed itself and held that the State could not present evidence of Mburu's prior DUI convictions because the prejudicial effect outweighed the probative value. This decision included the stipulation itself. But the district court was willing to give the jury a modified elements instruction that would exclude the element of a predicate conviction.

The State filed an interlocutory appeal from the district court's decision.

51 Kan.App.2d 269

Analysis

We have jurisdiction over the State's interlocutory appeal.

Mburu argues that this court lacks jurisdiction to hear the State's interlocutory appeal, relying on K.S.A.2013 Supp. 22–3603, State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984), and State v. Mitchell, 285 Kan. 1070, 179 P.3d 394 (2008). Mburu asserts that the State failed to show that it will be substantially impaired in prosecuting the case by the district court's exclusion of any evidence of Mburu's prior convictions at trial. Mburu also contends that because the State's interlocutory appeal was unauthorized, his speedy trial rights were violated and the case against him should be dismissed.

The State counters that the district court's actions resulted in the suppression of evidence that was vital to prove an element of the crime of refusing to take an alcohol test. Because the result was the suppression of evidence surrounding Mburu's necessary prior DUI conviction, including the stipulation or admission itself, K.S.A.2013 Supp. 22–3603 is triggered and the State, it argues, is allowed to file an interlocutory appeal. The State also addresses Mburu's speedy trial argument, asserting that the language of K.S.A.2013 Supp. 22–3604 allows such appeals by the State and the time while the appeal is pending does not count towards speedy trial calculations.

Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013).

The State's authority to appeal in a criminal case is limited by statute. The State may elect from the limited jurisdictional bases in its appeal. State v. Berreth, 294 Kan. 98, 112, 273 P.3d 752 (2012). The appellate court has jurisdiction to entertain a State's appeal only if it is taken within time limitations and in the manner

51 Kan.App.2d 270

prescribed by the applicable statutes. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010).

The applicable statute is K.S.A.2013 Supp. 22–3603, which provides:

“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within 14 days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal.”

In addition, our Supreme Court held in Newman, 235 Kan. at 34, 680 P.2d 257, that

346 P.3d 1090

“the term ‘suppressing evidence’ as used in [K.S.A. 22–3603 ] is to have a broader meaning than the suppression of evidence which is illegally obtained. It should include not only ‘constitutional suppression’ but also rulings of a trial court which exclude State's evidence so as to substantially impair the State's ability to prosecute the case.”

The Newman court made it clear that the prosecution is not allowed to file an interlocutory appeal from every “run-of-the-mill pretrial evidentiary ruling” of a district court. 235 Kan. at 35, 680 P.2d 257. “Interlocutory appeals are to be permitted only where the pretrial order suppressing or excluding evidence places the State in a position where its ability to prosecute the case is substantially impaired.” 235 Kan. at 35, 680 P.2d 257 ; see also Sales, 290 Kan. at 136, 224 P.3d 546 (quoting same). Accordingly, “the prosecutor should be prepared to make a showing to the appellate court that the pretrial order of the district court appealed from substantially impairs the State's ability to prosecute the case.” 290 Kan. 130, Syl. ¶ 5, 224 P.3d 546.

In this case, the State charged Mburu with one count of refusing to submit to alcohol or drug testing under K.S.A.2013 Supp. 8–1025. One of the requirements to convict a defendant of refusing to submit to testing is that the defendant either (1) has previously refused to take a test on or after July 1, 2001, and the defendant was 18 years of age or older or (2) has a prior DUI conviction or diversion that occurred on or after July 1, 2001, and the defendant was 18 years of age or older. K.S.A.2013 Supp. 8–1025(a). Mburu stipulated that he had two prior DUI convictions for purposes of

51 Kan.App.2d 271

establishing the element required by K.S.A.2013 Supp. 8–1025(a)(2).

The parties agree that by refusing to allow the State to present the stipulation to an element of the crime to the jury, the court was suppressing all the evidence of that element. But Mburu, relying on Newman, argues that it is not enough that the court suppressed evidence, the State is...