State v. Puckett
| Decision Date | 27 February 1982 |
| Docket Number | No. 52507,52507 |
| Citation | 230 Kan. 596,640 P.2d 1198 |
| Parties | , Blue Sky L. Rep. P 71,741 STATE of Kansas, Plaintiff-Appellee, v. Floyd Calvin PUCKETT, Defendant-Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights.
2. Where an appellate court raises a new issue sua sponte, counsel for all parties should be afforded a fair opportunity to brief the new issue and to present their positions to the appellate court before the issue is finally determined.
Marjorie Wholey Haines of Garrity, Fletcher, Haines, P. A., Wichita, argued the cause and was on briefs, for defendant-appellant.
Jack Peggs, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., Cris Senseman and R. Michael Jennings, Asst. Dist. Attys., were with him on briefs, for plaintiff-appellee.
This is a direct appeal in a criminal action in which the defendant, Floyd Calvin Puckett, was convicted of twenty-one counts alleging violations of the Kansas Securities Acts (K.S.A.1979 Supp. 17-1252 et seq.). The securities involved fractional interests in oil and gas leases. The defendant appealed to the Court of Appeals which affirmed in part and reversed in part in a published opinion, State v. Puckett, 6 Kan.App.2d 688, 634 P.2d 144 (1981). The Supreme Court granted review on the petition of the State.
The facts, issues, and resolution of the issues are set forth in the comprehensive opinion of the Court of Appeals written by Judge Meyer. It would serve no useful purpose to repeat what was stated in that opinion. Suffice it to say, the Court of Appeals reversed on seven counts charging unlawful acts in connection with the sale of securities under K.S.A.1979 Supp. 17-1253 and K.S.A.1979 Supp. 17-1267. These counts were referred to in Judge Meyer's opinion as the "fraud counts." The convictions on the other fourteen counts were affirmed. The basis for reversal on the seven fraud counts was twofold: (1) That the trial court abused its discretion in limiting defense counsel in his cross-examination of the State's expert witnesses; and (2) that the elements instruction on each of the fraud charges was defective because it failed to include as an element of the crime that the alleged misrepresentation made by the defendant was of a material fact. Any claimed error in the instructions in this regard was not raised by the defendant either in the trial court or asserted as error in the defendant's brief on appeal. The Court of Appeals did consider other claimed errors in certain instructions which were raised by defendant in his brief and rejected by the Court of Appeals.
Following the handing down of the opinion by the Court of Appeals, the State filed its petition for review raising a single issue which, in substance, was as follows: That the Court of Appeals exceeded its power in reversing and remanding the case for a new trial for trial errors that were not raised by the defendant in the court below, nor presented in his brief on appeal, nor raised in oral argument before the appellate court. In its petition for review, the State does not complain that the Court of Appeals erred in reversing the fraud counts because of undue restriction of defense counsel's right of cross-examination nor does the State question the correctness of the decision of the Court of Appeals that the elements instructions on the fraud counts were defective because they failed to require that there had to be a misrepresentation of a material fact. Simply stated, the only question for consideration on review is whether an appellate court in this State has the power, sua sponte, to consider trial errors in a criminal case not raised in the district court nor specifically raised by the defendant on the appeal.
It is undisputed that the error in the instructions found by the Court of Appeals was not objected to at the trial nor was it raised on appeal by the defendant. In its opinion, the Court of Appeals held that whenever an appellate court discovers an error in the jury instructions, which error is so extreme as to present a high likelihood that defendant's constitutional rights to a fair trial are involved, it has both the right and the duty to remand the case for new trial. Further, the court stated that is so, even if the matter was not objected to by defendant in the court below, nor presented in his brief on appeal, nor raised in oral argument before the appellate court. The ruling of the Court of Appeals on this issue and its comprehensive recitation of authority and rationale are set forth in the majority opinion of the Court of Appeals. Judge Rees, in his concurring opinion, concurred in the result and the decision of the court on all issues, except he questioned whether the Court of Appeals could reverse a trial court judgment, even in a criminal case, where it finds a "clear error" that has not been raised by the appellant, either at the trial level or on appeal.
The issue presented has been addressed on several occasions by this court. We note for example Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P.2d 858 (1967), where Justice Fontron stated the general rule and then recognized certain exceptions thereto. Syllabus P 3 states:
"As a general rule, a reviewing court will consider only those issues on which the parties have relied in trying their case, but exceptions exist where the newly asserted issue involves only a legal question arising on proved or admitted facts which will be finally determinative of the case, or where consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights."
In Pierce, the plaintiffs maintained on the appeal that, under the factual circumstances in the case, they had been deprived of their property without due process of law in violation of the Fourteenth Amendment to the federal Constitution and § 2 of the Bill of Rights of the Kansas Constitution. Plaintiffs' counsel candidly admitted that the constitutional question had not been raised in the court below and conceded that a reviewing court will ordinarily consider only those issues upon which the parties have tried their case. The opinion recognized three exceptions to the general rule:
(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and
(3) That a judgment of a trial court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision.
The Court of Appeals relied in part on Pierce and based its power to reverse on unclaimed errors in the instructions on the grounds that the error in the instructions was so extreme as to present a high likelihood that defendant's constitutional rights to a fair trial were denied. The rule of Pierce has been recognized in several later cases. Shinkle v. State Highway Commission, 202 Kan. 311, 318, 448 P.2d 12 (1968); Fields v. Stauffer Publications, Inc., 2 Kan.App.2d 323, 325, 578 P.2d 1138 (1978); and Holmquist v. D-V, Inc., 1 Kan.App.2d 291,...
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