State v. Wright, 112,635

• Decision Date: 24 March 2017
• Docket Number: No. 112,635,112,635
• Citation: 305 Kan. 1176,390 P.3d 899
• Parties: STATE of Kansas, Appellee, v. Kristofer J. WRIGHT, Appellant.
• Court: Kansas Supreme Court

305 Kan. 1176

390 P.3d 899

STATE of Kansas, Appellee,

v.Kristofer J. WRIGHT, Appellant.

No. 112,635

Supreme Court of Kansas.

Opinion filed March 24, 2017

Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P. Whalen, of the same firm, was with her on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

Defendant Kristofer J. Wright appeals his convictions for first-degree premeditated murder and conspiracy to commit murder. Wright raises five issues in his appeal, but today we address only his claim that his right to be present at all critical stages of his trial was violated.

Because the record is insufficient for us to complete meaningful review of this issue, and it may be dispositive of the entire appeal, we remand to the district court for factual findings, as described below. We retain appellate jurisdiction and will revisit this case once the findings have been made and added to the record before us.

FACTUAL AND PROCEDURAL BACKGROUND

Wright was charged with premeditated first-degree murder and conspiracy to commit murder for the shooting death of Jordan A. Turner. Defense attorney Timothy A. Frieden was appointed to represent Wright.

Wright wrote Frieden multiple letters from jail while awaiting trial. Wright also mailed the letters to the clerk of the district court to have them included in his case file. In a letter mailed and file stamped shortly before his first scheduled trial date, Wright wrote that he did not "want any more continuance[s] accredited to me" and that he wished to "invoke my right to be present at all critical stages."

Frieden nevertheless appeared before the district court on the date first set for trial—August 19, 2013—without Wright. Frieden also requested a continuance. The district judge granted the continuance, which delayed the start of Wright's trial past the applicable statutory 90 days. See K.S.A. 2012 Supp. 22–3402(a).

After the 90 days expired, Wright filed a pro se motion to dismiss the case against him, arguing that his right to be present at all critical stages and his right to a speedy trial were violated on August 19.

At the hearing on the motion to dismiss, Frieden said he could not argue the merits of the motion because of Wright's assertion that Frieden's request for the continuance was unauthorized. The district judge allowed Wright to speak on his motion, and Wright said that he had told Frieden he did not want any continuances and that he wanted to be present at all critical stages. The State argued in response that it would have requested a continuance on August 19, had it known Wright objected to the continuance sought by Frieden, because there was still unavailable material evidence at that time. The district judge denied Wright's pro se motion to dismiss.

Frieden withdrew from representation of Wright, and attorney Steven D. Mank entered his appearance as Wright's new counsel.

After a jury convicted Wright on both counts, he filed a motion for new trial. The testimony at the motion hearing focused primarily on the alleged violation of Wright's right to a speedy trial, even though Wright continued to assert a violation of his right to be present. The district judge denied Wright's motion for new trial without making any findings about Wright's right to be present on August 19. Neither Mank nor the State objected to the lack of findings on that issue.

DISCUSSION

In this appeal, Wright again argues that his statutory and constitutional right to be present at every critical stage was violated, compelling reversal of his convictions and dismissal of the charges.

An appellate argument on a "defendant's right to be present at every critical stage of his or her criminal trial raise[s] an issue of law over which this court exercises unlimited review." State v. Verser , 299 Kan. 776, 787, 326 P.3d 1046 (2014).

We have recently resolved the question of whether a continuance hearing is a critical stage at which a defendant is entitled to be present:

"Under the plain language of [the speedy trial statute,] K.S.A. 22–3402, a continuance resulting from a defendant's request stays the running of the statutory speedy trial period. When the request is made by defense counsel, the request for continuance is attributable to the defendant unless the defendant timely voices an objection. Because a defendant's disagreement matters in a statutory speedy trial analysis, a defendant must have an opportunity to be present to express that disagreement." State v. Dupree , 304 Kan. 43, Syl. ¶ 2, 371 P.3d 862 (2016).

Moreover, if a defendant is denied his or her right to be present and object at a continuance hearing, and the continuance is granted, it is unlikely there will be a remedy on appeal even if an appellate court later attributes the continuance time to the State. See State v. Brownlee , 302 Kan. 491, 511, 354 P.3d 525 (2015) (interpreting K.S.A. 22–3402 ) (even if continuance originally attributed to defense is attributed to State on appeal, appellate remedy very limited). In other words, in most instances, if a personal objection from the defendant is going to be more than a hollow gesture, it needs to be heard and adjudicated in the district court.

This case provides a signal example of these principles. Wright and Frieden evidently did not agree on the necessity or advisability of the continuance Frieden obtained on August 19, but Wright was not present at this critical stage to voice his opinion. We have no hesitance in ruling that his right to be present at all critical stages of his trial was violated.

Having determined that there was a violation of Wright's right to be present, we would normally move to an evaluation of whether the State has established that the error was harmless under the constitutional standard. See Verser , 299 Kan. at 789, 326 P.3d 1046. Under that standard,

" ‘error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.’ State v. Ward , 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012)." Verser , 299 Kan. at 789, 326 P.3d 1046.

Unfortunately, our ability to examine harmlessness here is stymied by the lack of factual findings on the presence issue from the district court. See State v. Hoge , 283 Kan. 219, 221–22, 150 P.3d 905 (2007) (meaningful appellate review precluded when trial court's findings of fact, conclusions of law inadequate to disclose controlling facts, basis for court's...