State v. Sales

• Decision Date: 29 January 2010
• Docket Number: No. 102,578.,102,578.
• Citation: 224 P.3d 546
• Parties: STATE of Kansas, Appellant, v. Andrew SALES, Appellee.
• Court: Kansas Supreme Court

224 P.3d 546

STATE of Kansas, Appellant, v. Andrew SALES, Appellee.

No. 102,578.

Supreme Court of Kansas.

January 29, 2010.

Don L. Scott, county attorney, argued the cause and was on the brief for appellant.

Razmi Tahirkheli, public defender, of Liberal, argued the cause and was on the brief for appellee.

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

The State appeals from a pretrial order prohibiting the State from presenting expert witness testimony on delayed reporting by child victims of sexual abuse. The defendant/appellee has raised the issue of the court's jurisdiction to hear the interlocutory appeal under K.S.A. 22-3603.

Andrew Sales was tried and convicted of one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(2). The alleged victim of the crime was his daughter. The crime was alleged to have occurred between the dates of June 1, 2004, and February 1, 2005; however, the victim did not disclose the event to anyone until the spring of 2008.

At trial, held November 17 and 18, 2008, the State presented the testimony of Oklahoma State Bureau of Investigation Agent Andrea Hamilton. Agent Hamilton is a trained child forensic interviewer with extensive experience in interviewing child victims of sexual abuse. Agent Hamilton testified that she interviewed the victim following the victim's disclosure of the abuse and she described the interview. In addition, the State sought and was granted leave by the court to qualify Agent Hamilton as an expert witness to testify about the reasons some children delay disclosing that they have been the victim of sexual abuse. She testified generally that children abused by someone with whom they have an on-going relationship, such as "a family member or soccer coach or someone from Church, tend not to disclose immediately." The ruling allowing her expert testimony specifically prohibited her from testifying "about the credibility or the quality of the evidence" presented by the victim, and Agent Hamilton did not present any testimony relating to why the victim, specifically, might have delayed disclosing the abuse, nor did she opine that the victim had been the subject of sexual abuse or that the defendant had been the perpetrator.

Following trial, the defendant filed a Motion for a New Trial and a brief in support of the motion. One of the issues he raised was that he "was prejudiced by the inadmissible testimony of the expert which passed on the credibility of the victim and on issues in the purview of the jury." In support of this issue, the defendant argued that Agent Hamilton's testimony concerning delayed reporting impermissibly "hoisted" the victim's credibility and that the jurors did not need expert testimony to aid them in determining why a child might delay disclosing sexual abuse.

The court apparently heard argument on the motion on March 6, 2009, but no transcript is included in the record on appeal. The court did file a detailed Journal Entry of Motion for New Trial, however, including these findings with respect to the expert testimony of Agent Hamilton:

"18. Defendant's second claim is he was prejudiced by the Court declaring the OSB agent an expert on child disclosures [sic] issues only.

"19. The Court in Warren v. Heartland Automotive Services, Inc., 36 Kan.App.2d 758, 760, [144 P.3d 73 (2006)] said:

`The qualifications of experts and the admissibility of their testimony are discretionary matters for the trial court. We will overturn the trial court's decision on these matters only if the court abused its discretion.'

"20. In retrospect, the determination that OSB Agent Andrea Hamilton was an expert and could give an opinion fails the Frye test and was error. Frye v. United States, (D.C.Cir.1923).

"21. Her opinion is based on soft science, if any, and was not supported by any reports, tests or other analysis.

"22. OSB Agent Andrea Hamilton should not have been declared an expert and doing so gave her entire testimony more credibility to the jury."

Based on these findings and other findings not relevant to this appeal, the district court granted the defendant's Motion for New Trial. The State then apparently made a motion requesting the court to reconsider, and briefs were filed on that motion; however, the motion itself is not in the record. Any ruling on that motion is also not reflected in the record. A new trial was scheduled for March 26, 2009, and a new judge was assigned.

The record does indicate that the State filed a Motion for Expert Witness on May 4, 2009, apparently to seek a pretrial ruling on the admissibility of Agent Hamilton's expert testimony in the second trial; however, again the motion is not included in the record on appeal. On May 14, 2009, the State filed a document entitled Submission of Additional Authority in Support of State's Motion to Admit Expert Testimony. The Submission of Additional Authority contains a brief statement arguing that the testimony of Agent Hamilton is "pure opinion" testimony and not subject to the Frye test. As authority, the State attached a copy of Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 14 P.3d 1170 (2000).

On May 20, 2009, the court filed a Pretrial Order. The order indicates a "Pre-trial" was held on May 8, 2009. No transcript, if one was made, is included in the record. The order disposes of several pending motions but states "[t]he Court will take under advisement the Motion for Expert Witness."

On May 21, 2009, the State filed a Notice of Interlocutory Appeal, appealing from the court's ruling on the Motion for Expert Witness. Specifically, the notice states that "[n]ot allowing expert testimony to explain this phenomenon [of delayed disclosure] to the jury substantially impairs the State's ability to prosecute this case." The notice cites K.S.A. 22-3601(a) and K.S.A. 22-3608 as authority for the appeal.

In a Journal Entry of Decision by the court dated and filed on May 18, 2009, District Court Judge Clinton Peterson took up the Motion for Expert Witness. Judge Peterson noted that the previous trial was before Judge Kim Schroeder and that following trial Judge Schroeder granted the defendant's motion for a new trial in part because he decided he had committed error by qualifying Agent Hamilton as an expert witness and allowing her testimony regarding delayed disclosure by child sexual abuse victims. Judge Peterson determined that, for consistency, he would defer to Judge Schroeder's ruling and deny the State's Motion for Expert Witness.

On May 22, 2009, the State filed an Amended Notice of Interlocutory Appeal. The notice is virtually identical to the original notice filed. The docketing statement filed by the State on June 3 states the issue in the case as "[w]hether the expert testimony of OSBI Agent Hamilton is subject to the Frye standard."

The case was filed in the Court of Appeals and transferred to this court pursuant to K.S.A. 20-3018(c).

On November 10, 2009, after the case was docketed in this court, the appellee filed a letter of additional authority with this court pursuant to Supreme Court Rule 6.09 (2009 Kan. Ct. R. Annot. 47) challenging the State's authority to file an interlocutory appeal pursuant to K.S.A. 22-3603. He alleges that the ruling regarding the expert testimony of Agent Hamilton does not substantially impair the State's ability to prosecute the case as required by case law interpreting the statute.

The State's notice of appeal, entitled "Notice of Interlocutory Appeal," cites K.S.A. 22-3601(a) (whenever an interlocutory appeal is permitted in a criminal case in the district court, such appeal shall be taken to the Court of Appeals) and K.S.A. 22-3608. The only provision of the latter statute still effective states: "For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal." Since the document is clearly identified as a notice of interlocutory appeal and the order appealed from, not allowing expert testimony on the phenomenon of delayed disclosure to be presented at the retrial of the case, is clearly identified, it must be assumed that the State intended to file this appeal under K.S.A. 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 ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal."

Prior case law of this court holds that "the appellate courts of Kansas should not take jurisdiction of the prosecution's interlocutory appeal [under K.S.A. 22-3603] from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved"; however, appeals under K.S.A. 22-3603 "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." State v. Newman, 235 Kan. 29, 34-35, 680 P.2d 257 (1984). The appellee maintains that the trial court's order prohibiting the expert testimony of Agent Hamilton regarding delayed disclosure of sexual abuse by children did not substantially impair the State's ability to prosecute this case and, consequently, this court has no jurisdiction over the appeal. Interpretation of a statute and determination of jurisdiction are questions of law over which this court's scope of review is unlimited. State v. Jefferson, 287 Kan. 28, 33, 194 P.3d 557 (2008); State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).

"The State's right to appeal in a criminal case is strictly statutory, and the appellate court has jurisdiction to entertain a State's appeal only if it is...