[I]f this was only the first time that this officer had not appeared I'd probably be inclined to buy it but that's not the first time that we've had a difficulty with this officer appearing for jury trials as scheduled. . . .
The COA rejected the state's claim that the district court failed to consider other alternatives to dismissal:
Here, the State served Tucker on April 4, 2007, for the trial on June 13, 2007. Apparently, the State never made any further contact with Tucker after the subpoena was issued. Unlike the witness in Corby, a private citizen with no relation to the State, Tucker was a Kansas Highway Patrol Officer. Not only should the State have more contact with such an officer than with a private citizen, it is disconcerting that the officer would dishonor a subpoena. Additionally, this was not Tucker's first problem with appearing at a trial, and this experience should have alerted the State that the issue could arise again. Had the State taken relatively simple preventative measures prior to the day of the trial, such as maintaining any level of contact with Tucker, it could have assured his compliance with the subpoena or moved for the continuance long in advance of the commencement of trial. It cannot be said that the State did everything it could to ensure that Tucker appeared for the trial.
We conclude the district court did not abuse its discretion in dismissing with prejudice under these circumstances. The trial date had been set, the witness was subpoenaed, the jury panel had been seated, the proceedings were suspended at the State's request, only to learn that the witness had disregarded the subpoena in order to take vacation-in a manner consistent with his past conduct.
[Update: the state did not file a PR and the mandate issued on May 15, 2008.]
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