State v. Parry, 113,130

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Biles, J.
Citation305 Kan. 1189,390 P.3d 879
Parties STATE of Kansas, Appellant, v. Dominic PARRY, Appellee.
Docket NumberNo. 113,130,113,130
Decision Date24 March 2017

305 Kan. 1189
390 P.3d 879

STATE of Kansas, Appellant,
Dominic PARRY, Appellee.

No. 113,130

Supreme Court of Kansas.

Opinion filed March 24, 2017

Richard E. James, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

Phylemon C. Yau, assistant public defender, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

The law of the case doctrine prevents a party from relitigating an issue already decided on appeal in successive stages of the same proceeding. See Thoroughbred Assocs. v. Kansas City Royalty Co. , 297 Kan. 1193, 1212, 308 P.3d 1238 (2013). In this appeal, we consider whether that doctrine prevents the State from relitigating an evidence suppression question in a second criminal prosecution after it lost on that question in an earlier appeal, then dismissed the first case, and refiled a new one against the same defendant on the same charges. A divided Court of Appeals panel applied the doctrine sua sponte and held the State could not argue the same suppression issue again in the subsequent prosecution. We affirm.


In response to a report of a marijuana odor at an apartment building, a police officer knocked on the door where Dominic Parry lived with his girlfriend, Erica Keeler, and their two-year-old son. Parry and Keeler answered. As the door opened, the officer noticed a strong marijuana odor emanating from their apartment. When the officer questioned the smell, Keeler admitted she had smoked marijuana earlier in the day. Parry and Keeler refused the officer's request to search their apartment. The officer responded by saying he was going to apply for a search warrant, during which time the couple could not go back into the apartment even though the officer knew their son was inside and unattended.

Though the record does not conclusively establish what happened next, police ultimately performed a warrantless search of the apartment and discovered marijuana and drug paraphernalia. The State charged Parry with felony possession of marijuana as a repeat offender, a violation of K.S.A. 2015 Supp. 21-5706(b)(3), and possession of drug paraphernalia, a misdemeanor violation of K.S.A. 2015 Supp. 21-5709(b)(2).

Parry moved to suppress the evidence obtained during the warrantless search. The State justified the search by claiming Parry and Keeler had given their consent. After an evidentiary hearing, the district court rejected the State's justification and ordered the evidence suppressed. The State took an interlocutory appeal, and the Court of Appeals affirmed the district court's ruling. See State v. Parry , No. 110671, 2014 WL 1708137 (Kan. App. 2014) (unpublished decision) (Parry I ).

Undaunted, four days after the panel's decision, the State dismissed the first case without prejudice and then charged Parry again with the same offenses in a new case. Parry once more moved to suppress the evidence from the warrantless search, and the district court held another evidentiary hearing. This time the State advanced two new legal arguments to support the search's legality: there were exigent circumstances excusing the need for a search warrant, or, alternatively, the drug evidence inevitably would have been discovered. The district court rejected both arguments and again granted Parry's suppression motion. The State filed yet another interlocutory appeal in an effort to reverse the district court's ruling on its new justifications for the warrantless search.

Neither side mentioned the law of the case doctrine in the initial briefing in the Court of Appeals, and the question was not addressed below in the district court. But the Court of Appeals on its own initiative requested supplemental briefing on the doctrine's potential applicability. Both sides complied without challenging the panel's authority to raise the issue sua sponte .

A panel majority affirmed the district court's second suppression order by applying the law of the case doctrine, holding: "[I]ts application preclude[d] the State from again

390 P.3d 882

litigating the constitutionality of the search of Parry's apartment in the renewed prosecution." State v. Parry , 51 Kan.App.2d 928, 930, 358 P.3d 101 (2015) (Parry II ). Because of this, the majority did not reach the merits of the State's revised legal theories concerning the evidence's suppression. See 51 Kan.App.2d at 935, 358 P.3d 101.

Judge Kathryn Gardner dissented. She conceded as a matter of principle that "the State should not piece-meal its theories about the legality of a search and try them seriatim." 51 Kan.App.2d at 936, 358 P.3d 101 (Gardner, J., dissenting). But she challenged the panel's authority to initiate the law of the case question on its own, noting the doctrine had not been argued below, played no part in the trial court's decision, and had not been raised on appeal by the parties. She also did not reach the merits of the State's new arguments. 51 Kan.App.2d at 936–38, 358 P.3d 101.

We granted the State's petition for review. Two issues are presented: (1) whether the panel majority erred by addressing the law of the case doctrine sua sponte ; and (2) if the panel did have that authority, whether the panel majority correctly applied the doctrine. Jurisdiction is proper. See K.S.A. 60–2101(b) (review of Court of Appeals decisions).


The State argues first that "[t]he Court of Appeals erred in finding it had jurisdiction to perform an unlimited review over a common law affirmative defense not raised at the lower court." And as a general rule, it must be conceded that a reviewing court will consider only those matters the parties raised in trying their case. See State v. Puckett , 230 Kan. 596, 598, 640 P.2d 1198 (1982). But because preservation is a prudential rule, rather than a jurisdictional bar, we have also held that an appellate court has discretion to apply exceptions to that general rule. State v. Rizo , 304 Kan. 974, 979, 377 P.3d 419 (2016). This discretion includes the sua sponte reaching of an issue not raised below or on appeal by either party. See Puckett , 230 Kan. at 600–01, 640 P.2d 1198.

But just because an exception may permit review of an unpreserved issue, this alone does not obligate an appellate court to exercise its discretion and review the issue. See, e.g. , State v. Herbel , 296 Kan. 1101, 1116–20, 299 P.3d 292 (2013) (declining to consider constitutional issue for the first time on appeal due to lack of evidence in the record allowing the court to address the merits and because appellant did not supply a sound foundation for appellate review); State v. Richmond , 289 Kan. 419, 428–30, 212 P.3d 165 (2009) (rejecting review of evidence's admissibility because the evidence at issue was not finally determinative and because such an exception could swallow the general rule). In other words, our caselaw is clear that an appellate court has discretion to decide when to walk this path. See State v. Stewart , 24 Kan. 250, 251 (1880) ("[I]f any glaring error to the prejudice of the rights of an accused appeared, we might be constrained to notice it.").

Judicial discretion is abused if the judicial action taken was: (1) arbitrary, fanciful, or unreasonable, i.e. , if no reasonable person would have taken the view adopted by the court; (2) based on an error of law, i.e. , if the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e. , if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Woods , 301 Kan. 852, 861, 348 P.3d 583 (2015).

The State incorrectly frames its argument in jurisdictional terms, but we will interpret its challenge as contending the panel majority abused its discretion by acting based on an error of law, i.e. , believing it had authority to inject the law of the case question into these proceedings sua sponte . As reframed, we disagree with the State's position.

We note the State did not object to the panel's request for supplemental briefing until the decision was announced. Instead, the State waited until Judge Gardner dissented, after which it suddenly embraced a challenge to the doctrine's injection into this appeal—doing so for the first time in its petition for review. So to the extent the...

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