State v. Marks

490 P.3d 1160

STATE of Kansas, Appellee,

v.Rickey MARKS, Appellant.

No. 123,034

Supreme Court of Kansas.

Opinion filed July 2, 2021

Joseph A. Desch, of Law Office of Joseph Desch, of Topeka, was on the brief for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Rickey Marks seeks personal copies of records the State made available to his attorney more than a decade ago during criminal proceedings that led to his conviction of first-degree premeditated murder. The district court denied Marks' pro se and barebones postconviction motion to compel the production of those records, and he brought this appeal. Before us, now represented by counsel, Marks cites K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 as authority for his motion to compel. But neither K.S.A. 2020 Supp. 22-3212 nor K.S.A. 2020 Supp. 22-3213 permit postconviction discovery in a criminal case. We thus reject his arguments and affirm the district court's denial of Marks' motion to compel discovery.

FACTS AND PROCEDURAL BACKGROUND

Marks has litigated the question of whether he is entitled to a copy of the discovery materials throughout this case. Before his trial on the first-degree premeditated murder conviction, he asked the trial court judge to require the State give him his own copy of discovery materials and witness statements. The State objected, noting it had an open-file discovery policy and was giving Marks' trial counsel full access to its records. The trial judge denied Marks' request for a personal copy of the discovery. On the record, Marks' counsel told the judge the defense team would review and discuss all the discovery material with Marks.

A trial followed, and a jury convicted Marks of first-degree premeditated murder. A judge sentenced Marks to a hard 25 life sentence, and Marks appealed to this court. In that appeal, he argued, among other issues, that the trial judge erred when the judge ruled that Marks was not entitled to a personal copy of the discovery. He based this allegation on both statutory and constitutional grounds.

We agreed with his argument in part. We found merit in his statutory argument: "Under the plain language of K.S.A. 22-3212 and K.S.A. 22-3213, the defendant is entitled to personal copies of certain discovery upon request." State v. Marks , 297 Kan. 131, Syl. ¶ 7, 298 P.3d 1102 (2013). But we rejected Marks' argument that he had a constitutional right to personal copies. We noted " ‘[t]here is no general constitutional right to discovery in a criminal case.’ " 297 Kan. at 149, 298 P.3d 1102 (quoting Weatherford v. Bursey , 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 [1977] ). As to Marks' argument that the judge's ruling infringed on his constitutional right to meaningfully participate in his own defense, we held that he failed to support that argument. First, he did "not articulate how his participation was actually impeded when he otherwise had the opportunity to review the information with his attorney." 297 Kan. at 148, 298 P.3d 1102. Second, he failed to "cite any authority which would support his theory of constitutional infringement." 297 Kan. at 148, 298 P.3d 1102. After discussion of relevant caselaw, we held that "[a] defendant's right to assistance in his or her defense does not translate to a constitutional right to personal copies of discovery, particularly when that discovery was already provided to his or her attorney." 297 Kan. at 149, 298 P.3d 1102 (citing United States v. Shrake , 515 F.3d 743, 745 [7th Cir. 2008] ; State v. Deavers , 252 Kan. 149, 158, 843 P.2d 695 [1992], cert. denied 508 U.S. 978, 113 S.Ct. 2979, 125 L.Ed.2d 676 [1993] ; People v. Davison , 292 Ill. App. 3d 981, 988, 686 N.E.2d 1231, 227 Ill.Dec. 75 [1997] ).

We then turned to the question of whether the violation of Marks' statutory right to have a copy of the discovery was harmless. We noted that the State's open file policy allowed Marks' attorneys access to discovery that met or exceeded the requirements of the criminal discovery statutes. And Marks did not allege his defense was compromised by any failure to obtain copies or that his counsel failed to review discovery with him. We thus held there was no reasonable probability the district court's erroneous interpretation of K.S.A. 22-3212 and K.S.A. 22-3213 affected the trial's outcome. In other words, the statutory error was harmless. Marks , 297 Kan. at 150, 298 P.3d 1102.

About five years later, Marks renewed his effort to get personal copies of the discovery—this time through a postconviction motion filed under K.S.A. 60-1507. The district court held a full evidentiary hearing before denying relief. The Court of Appeals affirmed. Marks v. State , No. 115,444, 2017 WL 2494990 (Kan. App. 2017) (unpublished opinion).

Marks also pursued habeas relief in federal court. The federal district court dismissed Marks' petition in part and denied it in part. See Marks v. Cline , No. 5:18-CV-03065-HLT, 2020 WL 1812267 (D. Kan. 2020) (unpublished opinion). Marks appealed to the Tenth Circuit, which recently denied his request for a certificate of appealability. Marks v. Cline , No. 20-3071, 853 Fed.Appx. 224 (10th Cir. 2021) (unpublished opinion).

While the federal action was pending, Marks also persisted with repeated attempts to obtain postconviction discovery through motions filed in his state criminal case. His three most recent attempts were filed on June 8, June 30, and July 2, 2020. The district court denied all three.

The first request filed June 8 cited no authority for requesting the discovery. The sole basis for the request appears to be: "Without this discovery plaintiff will not be able to present me[ritor]ious issues to the US District Court 10th Circuit." The district court denied the motion on June 16, 2020; the order did not address the June 30 or July 2, 2020, motions. Marks filed a notice of appeal relating to "all issue[s] that were ruled on the motion to produce discovery filed June 8, 2020 ." (Emphasis added.) The Docketing Statement identified the subject of the appeal as the district court's ruling dated June 16, 2020. And Marks' brief confirms his appeal is limited to the June 16, 2020, district court order. Thus, although the history of the case involves several district court rulings, we restrict our consideration to Marks' June 8, 2020, motion that the district court denied on June 16, 2020.

As noted, Marks' pro se filing offered no authority for his request. But, through counsel, Marks' appellate brief argues K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 authorized the district court to grant his discovery request. Marks argues liberal construction of his pro se pleadings permits the court to consider this argument. We agree. See State v. Kelly , 291 Kan. 563, 565, 244 P.3d 639 (2010).

ANALYSIS

Marks' appeal, as argued before us, thus hinges on whether K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 authorize a district court to order postconviction discovery. He recognizes that we have rejected arguments that authority for postconviction discovery arises from other statutes. For example, he cites to our holding in State v. Robinson , 309 Kan. 159, 161, 432 P.3d 75 (2019), that " ‘[n]othing in [ K.S.A. 2015 Supp. 60-237 ] permits a postconviction motion to compel discovery in a criminal case.’ "

In placing all his discovery eggs in the K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 basket, he notes that " ‘ K.S.A. 22-3212 ... sets out comprehensive notice and discovery requirements for the parties in criminal trials.’ State v. Edwards , 299 Kan. 1008, 1015, 327 P.3d 469 (2014)." And " ‘[a] defendant may request discovery pursuant to K.S.A. 22-3212 and 22-3213.’ State v. Sherry , 233 Kan. 920, 929, 667 P.2d 367 (1983)." Marks suggests these holdings mean that postconviction discovery is allowed by these statutes.

Marks' arguments ignore the plain language of these statutes. Yet the outcome of this appeal depends on whether, through the language in K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213, the Legislature expressed an intent to allow postconviction discovery. "To divine that intent, courts examine the language of the provision and apply plain and unambiguous language as written. If the Legislature's intent is not clear from the language, a court may look to legislative history, background considerations, and canons of construction to help determine legislative intent." Jarvis v. Dept. of Revenue , 312 Kan. 156, 159, 473 P.3d 869 (2020). This question of statutory interpretation presents an issue of law subject to our unlimited review. 312 Kan. at 159, 473 P.3d 869.

Both K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 are plain and unambiguous, at least as to the question of whether they authorize postconviction discovery. No provision explicitly allows a district court to order postconviction discovery. And both statutes include temporal limitations relating to the pretrial and trial phases of criminal proceedings. These temporal limitations exclude postconviction discovery.

K.S.A. 2020 Supp. 22-3213, the narrowest of the two statutes, relates to the discovery of witness statements. Its provisions are not triggered until the defense makes a request after a "witness has testified on direct examination at the preliminary hearing or in the trial of the case." K.S.A. 2020 Supp. 22-3213(a). Once the witness testifies and a discovery request is made, the statute makes clear the State must deliver the requested materials "directly to the defense for examination and use by the defense." K.S.A. 2020 Supp. 22-3213(b). The Legislature accommodated the potential disruption this sequencing and timing might cause by stating that the court could "recess proceedings in the trial for such time as it may determine to be reasonably...