Thursday, April 03, 2008

State really loses on interlocutory appeal

William Mahoney won in State v. Mitchell, No. 98,512 (Kan. March 28, 2008), affirming Judge McNally's order refusing to admit evidence surrounding a prior adjudication in a Wyandotte County criminal possession of a firearm prosecution, which was the tail wagging a fiirst-degree murder prosecution. The state sought to admit the evidence even though Mr. Mitchell was willing to stipulate to the prior adjudications that were the elements of the low-level offense. The district court refused to admit the evidence and the state filed an interlocutory appeal.

The KSC noted that under SCOTUS case law and its own case law, this stipulation renders the other evidence irrelevant:

When a defendant stipulates to his or her status as a prior offender prohibited from owning or possessing a firearm pursuant to K.S.A. 21-4204, evidence of the prior crime is no longer relevant to prove a disputed material fact because the fact of the defendant's status is not disputed. Furthermore, under the second step in the Gunby analysis, the evidence of the defendant's prior crime is more prejudicial than probative if the defendant is willing to stipulate to his or her status. See [Old Chief v. United States, 529 U.S. 172, 191 (1997)]; United States v. Wacker, 72 F.3d 1453, 1472-73 (10th Cir. 1995); [State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999)].
But the KSC not only holds against the state on this point, it holds that because the state was not impaired from prosecuting under the district court's order, the interlocutory appeal was not valid:

Pursuant to Lee, the State is required to accept Mitchell's stipulation as to his status and is precluded from admitting independent evidence to the jury to establish the elements of Mitchell's status. The State has failed to demonstrate that the district court's decision is erroneous and not in compliance with Kansas law. Thus, the State cannot demonstrate that the exclusion of its proposed stipulation of the prior juvenile adjudication substantially impairs its ability to prosecute the case. If the exclusion of evidence does not substantially impair the State's ability to prosecute the case, the State cannot raise the issue as an interlocutory appeal. As a result, we do not have jurisdiction to address the State's appeal.
And the kicker is that, because the appeal is not authorized, the speedy trial clock has been running the whole time:

The time for the State's unauthorized interlocutory appeal must be charged against the State. K.S.A. 22-3402 does not specifically address the situation when the defendant revokes his or her waiver of the right to a speedy trial. However, it provides that a defendant in custody solely for the crime charged is entitled to be tried within 90 days of arraignment. K.S.A. 22-3402(1). If the defendant is out on bond, he or she is entitled to be tried within 180 days of arraignment. K.S.A. 22-3402(2). Mitchell was arraigned in 2005 but waived his right to a speedy trial until March 28, 2007. The district court set Mitchell's bail at $125,000 after it suspended his trial. Other than Mitchell's pleading filed on March 28, 2007, which states that Mitchell was in custody, there is nothing in the record to establish whether Mitchell is currently in custody or whether he bonded out. Assuming that Mitchell remains in custody, the State is entitled to a new 90-day period after Mitchell reasserted his right to a speedy trial. The 90-day period expired on June 28, 2007. Assuming that Mitchell was released on bond, the State is entitled to a 180-day period after Mitchell reasserted his right to a speedy trial. The 180-day period expired on September 27, 2007. Under either scenario, the State has failed to bring Mitchell to trial within the statutory speedy trial period. As a result, the case against Mitchell must be dismissed and he is discharged from further liability.
So the result of the state trying to get in just a little more evidence on the criminal possession of a firearm charge, it loses its murder prosecution. Perhaps the state should be a little more choosy in picking its battles.

[Update: the state filed a motion for rehearing on April 16, 2008].

[Futher update: the KSC denied the state's motion for rehearing and the mandate issued on May 29, 2008.]

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