State v. Bird

482 P.3d 1157

STATE of Kansas, Appellant/Cross-appellee,

v.Stephen Wayne BIRD, Appellee/Cross-appellant.

No. 120,816

Court of Appeals of Kansas.

Opinion filed February 19, 2021.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellant/cross-appellee.

Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for appellee/cross-appellant.

Before Arnold-Burger, C.J., Malone, J., and Walker, S.J.

Arnold-burger, C.J.:

After the parties selected the jury but before being sworn in, the district court dismissed one count of a grand jury indictment against Stephen Wayne Bird. The next morning, the State announced that it was dismissing the remaining charge to pursue a direct appeal. Over Bird's objection, the district court dismissed the remaining charge and this appeal followed from the State. Bird filed a notice of cross-appeal arguing that the court should have dismissed the indictment before both dismissals because the grand jury process used by State resulted in the denial of his right to due process. Both parties also challenge whether this court has appellate jurisdiction to consider the claims raised by the other party on appeal. After reviewing the claims presented, we find that this court has jurisdiction over the State's appeal, the district court erred in dismissing Count 2 of the indictment, and this court lacks jurisdiction over Bird's cross-appeal. Accordingly, we reverse the district court's decision and dismiss Bird's cross-appeal.

FACTUAL AND PROCEDURAL HISTORY

In October 2017, a grand jury indicted Stephen Wayne Bird on charges of aggravated indecent liberties with a child under 14 years old, in violation of K.S.A. 2017 Supp. 21-5506(b) (Count 1); and aggravated indecent solicitation of a child under 14 years old, in violation of K.S.A. 2017 Supp. 21-5508(b) (Count 2). The indictment contains little to no factual information, but a review of other pleadings establishes that the charges stemmed from allegations that Bird touched a child on the leg in a restaurant and then invited her to come swim at his hotel.

On January 8, 2019, Bird moved to dismiss the indictment, arguing that the grand jury procedure used to obtain the indictment was defective. Bird contended that the only evidence presented to the grand jury was hearsay and was thus inadmissible under the Kansas rules of evidence.

A week later, Bird filed a notice of defect in Count 2, asserting in the motion that Count 2 as alleged in the indictment did not have the correct mens rea language. According to Bird, Count 2 was "therefore void and fail[ed] to vest jurisdiction on this Court [and] cannot be submitted to the jury."

At the hearing on Bird's motions the parties briefly discussed the notice of defect and agreed that the court need not rule on the issue at that time. As for the motion to dismiss, Bird called two witnesses to testify about the grand jury procedure. First, Sergeant Andrew Dale of the Shawnee County Sheriff's Office (SCSO) testified. Dale said he was the "designee" for the SCSO's Criminal Investigations Division who testified before grand juries when called on by the Shawnee County District Attorney's Office. According to Dale,

"The DA's office, typically what they will do when they're preparing for a grand jury for the following week or whenever, they will e-mail me a list of cases. It will contain an agency—our agency case number and the name of a defendant. With that information, I'll pull the case up using our computer system. I'll usually research the charging affidavit, and then any narratives, and supplemental reports or paperwork that are in that case. Sometimes what they send me may include notes, if there are prior convictions that are taken into consideration or any underlying charges. If it's a superseding indictment, I research that."

Dale said that his grand jury testimony reflects his "research" and not his personal knowledge of a case.

Then, Kevin Keatley of the Shawnee County District Attorney's Office testified. Keatley said his role was to be a legal adviser for the grand jury, which involved presenting evidence to the grand jury. The testimony described by Dale is not the "exclusive source" of evidence but typically was the only verbal testimony presented. Keatley could not recall if he was involved in obtaining the grand jury indictment in Bird's case.

In closing argument, Bird's defense counsel reiterated the arguments made in the motion to dismiss. The State noted that it has briefed this issue "a number of times" and generally disputed whether the rules of evidence applied in grand jury proceedings in Kansas. The State also asserted that criminal defendants have no constitutional rights of confrontation at that stage, then requested two days to file a response brief to the arguments made in Bird's motion.

The district court commented that "a lot of the Judges in this jurisdiction have had some concerns with regard to the grand jury proceeding given the fact that, you know, some cases it seems like it's extremely beneficial to have a preliminary hearing." The court then noted that under K.S.A. 22-2902 there are "relaxed rules of evidence" for a preliminary hearing that involves a victim of a felony under 13 years old. Ultimately, the court deferred ruling on the motion but said that K.S.A. 22-2902 "may cut against the defense['s] arguments in this situation. So, I'll just say that, and leave it at that at this point in time."

The State responded the morning of the first day of trial, and then the parties proceeded through voir dire and jury selection. The district court provided the standard instructions to the chosen jurors and then dismissed them for the day because of inclement weather, noting that the court would swear them in the following morning. The court then took up the issue presented by Bird's notice of defect.

As in the notice, Bird's defense counsel argued that the appropriate culpable mental state was "intentional" because of previous cases holding that aggravated indecent solicitation is a specific intent crime and because of the statute that says a specific intent crime requires intentional conduct. But "[f]or whatever reason, the grand jury returned an indictment requiring something less and found probable cause for knowing conduct, which is for general intent crimes. Intent is an essential element. You can't cure that by amending it. So that's the end of the story." Defense counsel also asserted that he filed the notice a week in advance so that the State could obtain a superseding indictment, but "[i]t's too late now."

The State asserted that based on K.S.A. 2017 Supp. 21-5202(e), any of the three recognized culpable mental states would suffice since the particular statutory subsection the grand jury charged Bird under did not include a culpable mental state. The district court ultimately chose to dismiss Count 2, noting in response to the State's position:

"That's not the way I've dealt with it in other cases. Certainly, we instruct on three separate culpable mental states. But I don't think the statute is written in a way that just says that the prosecution gets to pick one and just insert that in there. That was not my understanding.

"Certainly, PIK says that if it is silent and it is a crime that requires a culpable mental state, then the Court would instruct on all three, which would have been, typically, what I would've expected to do in this situation. That's one issue. So that concerns me that, for some reason, the State picked knowingly.

"And I understand the argument of Mr. Patterson, because the statute does seem to imply that it could be one of the three, any one of the three, but I don't think that's, certainly, the way that it was analyzed by the PIK committee, and it certainly is different from how I've dealt with other crimes that don't have a specific culpable mental state.

"The other issue that Mr. Joseph raises is based on State v. Brown . Now, I would note for the record that State v. Brown was a case based on the prior statute, not on the recodifications, though it is dealing with the same clause, which was the A clause in Brown , the statute was K.S.A. 21-3511(a), and the issue was whether or not that was a specific intent crime.

"And I believe the—well, let me pull it back up. The statute read, at that time, something very similar to the statute that we have right now. And so I think that the rationale in Brown is, really, certainly, compelling for this issue, because we are talking about a statute that is very, very similar to the current statute.

"And they cite the definition of solicitation, and they also cite an unpublished case, Richardson v. State . But they basically say that—as I read it, that there needs to be a specific intent to solicit or entice a child to commit an unlawful sex act. I'm going to dismiss Count II. I think it's problematic on both fronts."

That evening, the State moved to reconsider the dismissal of Count 2. But when the parties convened the next morning, the State announced that it was withdrawing the motion to reconsider and dismissing Count 1 of the indictment without prejudice to pursue an interlocutory appeal. Bird's defense counsel noted that they had not researched the issue yet but believed the prejudicial effect on Bird should give him grounds to object to a last-minute dismissal.

The State responded that the motion was filed "days" before the trial, when ordinarily the State is statutorily allowed 21 days to respond to a motion to dismiss. The district court expressed a willingness to entertain the motion to reconsider, but the State said it did not believe the court could legally reinstate an indicted charge that it had dismissed.

Bird's defense counsel responded that he did not caption the notice as a motion to dismiss "because it wasn't really anything other than a notice that the language in the grand jury indictment is flawed." Defense counsel believed the remedy...