State v. Mulleneaux

512 P.3d 1147

STATE of Kansas, Appellant,

v.Michael Glen MULLENEAUX II, Appellee.

No. 121,503

Supreme Court of Kansas.

Opinion filed July 8, 2022.

Tony R. Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.

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

In criminal cases, the Kansas Legislature has provided limited and specific paths for the State to appeal. Here, at different points in the proceeding, two alternative paths became available to the State. The first path arose because the district court judge suppressed evidence as a discovery sanction; the State could have taken an interlocutory appeal of that decision. But it made the strategic decision to instead ask the judge to dismiss the case without prejudice. In doing so, the State told the judge that without the suppressed evidence it could not proceed to trial. The judge then dismissed with prejudice. The State now appeals from the dismissal with prejudice.

On appeal, the Court of Appeals considered the issue to be whether the judge erred by imposing dismissal with prejudice as a sanction for a discovery violation. Finding error, the Court of Appeals reversed and remanded the case. State v. Mulleneaux , No. 121,503, 2021 WL 3573777 (Kan. App. 2021) (unpublished opinion).

We hold, however, the district court's sanction for the discovery violation was to suppress evidence and continue with the trial as scheduled. The State chose not to appeal those decisions. Instead, the prosecutor informed the district court that the State could not proceed to trial without the suppressed evidence and asked the court to make a finding of necessity so it could gain a speedy trial advantage upon filing a new case against Michael Glen Mulleneaux II, a case unburdened by a suppression ruling. Under those circumstances, we hold the district court did not abuse its discretion in dismissing the case with prejudice. We thus reverse the Court of Appeals and affirm the district court.

FACTS AND PROCEDURAL BACKGROUND

A law enforcement officer stopped Mulleneaux for a traffic violation. During the stop, the officer learned Mulleneaux was driving on a suspended license and arrested him. The officer performed a search incident to arrest and found a pipe with suspected drug residue. This led to the State charging Mulleneaux with one count of possession of marijuana and one misdemeanor count of possession of drug paraphernalia. See K.S.A. 2017 Supp. 21-5706(b)(3) (possession of marijuana); K.S.A. 2017 Supp. 21-5709(b)(2) (possession of drug paraphernalia). The State alleged Mulleneaux had two prior convictions for possession of marijuana, which made the possession of marijuana a felony. See K.S.A. 2017 Supp. 21-5706(c)(3)(C).

Soon after the State filed charges against Mulleneaux, his attorney requested discovery and inspection under K.S.A. 2021 Supp. 22-3212 and K.S.A. 2021 Supp. 22-3213. She did so by signing a form discovery agreement provided by the Geary County Attorney's Office. The agreement states the County Attorney's Office will provide discovery within 20 days after arraignment. Fax records reflect the Geary County Attorney's Office received the discovery agreement. Despite Mulleneaux's request, discovery became an issue twice during pretrial proceedings.

The first dispute related to two documents presented by the State at Mulleneaux's preliminary hearing—a journal entry of conviction and a journal entry of motion to revoke probation. This dispute is not at issue on appeal but provides context for Mulleneaux's arguments and the judge's ruling. After the preliminary hearing, Mulleneaux moved to dismiss the felony charge of possession of marijuana, arguing neither journal entry proved the necessary prior convictions. During a hearing on the motion, Mulleneaux's counsel asked the district court judge to "order the State to provide me with copies of those two documents [the journal entries], as I haven't received the discovery." The judge granted Mulleneaux's motion and remanded the case for a second preliminary hearing.

The second discovery dispute leads to this appeal. It relates to a Kansas Bureau of Investigation (KBI) report analyzing whether officers seized marijuana residue during Mulleneaux's arrest. This district magistrate judge admitted the report into evidence in the two preliminary hearings conducted in district court. At both hearings, the arresting officer testified about the traffic stop and subsequent arrest of Mulleneaux. The officer also explained she sent a pipe found during the search incident to Mulleneaux's arrest to the KBI for testing. She received a lab report documenting that a chemist had detected THC. On cross-examination at the second preliminary hearing, the officer confirmed the only evidence of marijuana found on Mulleneaux was the residue in the pipe. The State did not provide a copy of the lab report to the defense at the hearing.

As the time for the trial approached, the State still had not provided a copy of the lab report to Mulleneaux's attorney. This led to Mulleneaux's attorney moving to exclude the KBI lab report and the KBI chemist's testimony from evidence at trial. The district court judge heard arguments on the motion the first morning of the trial; the judge was the same judge who had heard the motion to dismiss and who was thus aware of the first discovery dispute.

Mulleneaux's attorney first explained why she filed the motion. She detailed the steps she had taken to get the report, including completing and faxing the County Attorney's form discovery agreement. But the State had not provided the report, a fact she realized when preparing for trial. She decided to review the County Attorney's file under its open file policy because of her experience with trying to get a copy of the journal entry the State had relied on at the preliminary hearing. She recounted that when she asked for a copy she was told the County Attorney's Office did not physically have one. But when she inspected the County Attorney's file on Thursday before trial, she found a copy of the journal entry she had been seeking. She did not find the KBI report, however. The next day she filed the motion in limine, asking to suppress the KBI report and the chemist's testimony. While the State sent her a copy over the weekend before trial, she contended the late production did not cure the discovery failure because she had needed the report so she could contact and interview the chemist.

The State argued against excluding the evidence because defense counsel had a chance to review the report at both preliminary hearings and had never moved to compel production of the report. The State had no record of the discovery request Mulleneaux faxed to its office, so it argued K.S.A. 2021 Supp. 22-3212 and its pretrial discovery requirements did not apply. The State argued instead K.S.A. 2021 Supp. 22-3213 applied, which did not require disclosure of any report until after the witness testified. The State also noted defense counsel discovered the report was missing from the State's file on the Thursday before trial but did not notify the State before filing a motion in limine at 5 p.m. on the Friday before the scheduled trial start on Monday. The State said it located and sent a copy of the report to counsel over the weekend. It suggested the more appropriate remedy on these facts would be a continuance.

The district court judge took a brief recess to consider the parties' sanction arguments and review documents. The judge then ruled from the bench and suppressed the evidence:

"There's an obligation for the State to comply with statute[. T]he request for discovery and inspection, which is admitted as Defense Exhibit A, was faxed on June 25th, 2018. The request was made. Statute and the request should have been followed and complied with. They were not. So the sanction is that the State is not allowed to use the KBI lab report or testimony by the KBI lab tech. Court will grant defendant's second motion in limine."

The prosecutor immediately announced: "With that ruling, Judge, the State's going to dismiss without prejudice." The State asked the judge to make "the specific finding that it's being dismissed out of necessity because we can't use the KBI chemist's testimony."

Mulleneaux's counsel responded that if the court were to dismiss the case the dismissal should be with prejudice because the State sought to achieve a tactical advantage through the dismissal by circumventing the judge's suppression order through a new action. The State responded: "[W]e're not dismissing this because of a tactical advantage. We're dismissing this because of their motion. And we cannot proceed to trial because of their motion and their request and sanction. So, out of necessity, we cannot proceed."

The district court dismissed the charges with prejudice.

The State appealed to the Court of Appeals, revealing in its notice of appeal that it was appealing from "the district court's dismissal with prejudice." The State identified K.S.A. 2021 Supp. 22-3602(b)(1) as the statutory authority for its appeal; that statute allows a prosecutor to appeal in a criminal case from an order of dismissal.

The Court of Appeals reversed. It concluded the district court abused its discretion by dismissing with prejudice for a discovery failure. See Mulleneaux , 2021 WL 3573777, at *3. Judge Atcheson dissented based on "the exceptionally deferential standard of review we are to apply." 2021 WL 3573777, at *4 (Atcheson, J., dissenting).

Mulleneaux petitioned for review. This court granted review and obtained jurisdiction under K.S.A. 20-3018(b) (petitions for review of Court of Appeals decisions) and K.S.A. 60-2101(b) (jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

In the State's brief before the Court of...