State fails to show grounds for interlocutory appeal

Razmi Tahirkheli won in State v. Sales, No. 102,578 (Jan. 29, 2010), obtaining dismissal of a state appeal of Judge Peterson's order excluding some expert testimony in a Seward County agg criminal sodomy prosecution. After conviction, the district court determined that it had erroneously allowed in some testimony regarding delayed reporting and granted a new trial.
After a somewhat convoluted procedure, the state file a "Notice of Interlocutory Appeal," citing K.S.A. 22-3601(a) and 22-3608 for authority for the appeal. The KSC noted that the state probably meant K.S.A. 22-3603, govening interlocutory appeals and further noted that while in limine type orders can be reviewed under K.S.A. 22-3603,

the appellate courts of Kansas should not take jurisdiction of the prosecution's interlocutory appeal [under K.S.A. 22-3603] from every run-of-the-mill pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved.

The KSC reviewed its prior case law governing interlocutory appeals:

Examining these cases, it appears that in order to determine whether a trial court order substantially impairs the State's ability to prosecute a case, the evidence available to the State must be assessed to determine just how important the disputed evidence is to the State's ability to make out a prima facie case. Newman and subsequent cases also indicate that evidence subject to a discretionary standard of admission is less likely to substantially impact the State's case.

Applying this standard, the KSC easily concluded that exclusion of the testimony in this case did not reach the level substantial impairment:

The testimony of Agent Hamilton concerning delayed disclosure was brief, extremely general, and in essence boils down to one or two sentences indicating that it is not unusual for children who are in a relationship with their abuser to delay disclosing the abuse. The State still has the testimony of the victim, her aunt, her mother, and Agent Hamilton's interview testimony. Very little is lost with the removal of Agent Hamilton's testimony on delayed disclosure. Indeed, the need for expert testimony on the issue at all is disputed.

The KSC also noted that the state had failed to respond to the jurisdictional issue raised by Mr. Sales, which can constitute waiver of the interlocutory appeal. As a result, the KSC dismissed the state's appeal.