Opinion
109,172.
10-24-2014
STATE of Kansas, Appellee, v. tJeffrey Shawn CASEY, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In August 2012, a jury in Saline County District Court convicted Defendant Jeffrey Casey of rape and other felony offenses arising out of a home invasion and sexual assault that happened about 7 years earlier. Casey contends both that the State's 5–year delay in filing charges against him violated his due process rights and that the district court improperly limited his cross-examination of the victim at trial. We find no error and affirm the convictions.
On August 3, 2005, a man entered the apartment of B.H. after she had gone to bed. He raped and sodomized her. As soon as her attacker left, B.H. sought help from a neighbor. She was transported to a Salina hospital for treatment. At that time, a forensic examiner collected evidence likely to contain DNA. B.H. could not provide a particularly useful description of man because the apartment was dark. The biological evidence was sent to the Kansas Bureau of Investigation (KBI) laboratory for testing at the end of August 2005. Because of a significant backlog and later oversight, the KBI lab did not test the evidence until April 2010. The testing of biological evidence taken from B.H.'s neck and upper chest produced a DNA profile. Three months later that profile was run through a national databank resulting in a match with a known DNA sample from Casey.
On August 11, 2010, the State filed charges against Casey. A short time later, he was taken into custody in Oklahoma, where he lived, and returned to Saline County.
Casey filed a motion to dismiss the prosecution because of the delay in filing the charges. The district court held an extensive evidentiary hearing on the motion and found the delay neither pushed the prosecution past the governing statutes of limitations nor denied Casey constitutional due process protections. In making those findings, the district court determined the KBI's delay in testing the evidence was not for any tactical purpose or to disadvantage Casey in some way.
At trial, B.H. testified as to the circumstances of the assault-details we needn't recount here. The State presented testimony regarding the biological evidence and the identification of Casey as the person whose DNA profile matched the profile drawn from that evidence. Casey testified in his own defense and recounted for the jury that he and B.H. had mutual friends, so they knew each other in passing. Casey told the jury he recalled running into B.H. at a shopping mall in Salina in early August 2005 and giving her a hug. Christopher Klenda, a friend of Casey's, testified that he recalled both being with Casey at the mall and the chance encounter with B.H. Klenda told the jury he remembered their hug. The testimony was aimed at offering an alternative explanation for Casey's DNA being found on B.H. following the attack.
The jury convicted Casey of rape, attempted rape, three counts of aggravated criminal sodomy, attempted aggravated sodomy, and aggravated sexual battery-all serious felonies. The district court later sentenced Casey to prison term of 253 months on the rape conviction to be served consecutive to a prison term of 59 months on the attempted rape conviction. The district court imposed various concurrent sentences on the other convictions, yielding a controlling prison term of 312 months. Casey has timely appealed.
For his first issue, Casey contends the district court erred in finding the 5–year delay between the crime and the State's decision to charge him conformed to constitutional due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution. Casey has not appealed the district court's ruling that, under K.S.A.2005 Supp. 21–3106(3)(a), the State complied with the appropriate statutory time limits for commencing prosecution. Based on the statutory language and the chronology established at the hearing, the decision seems understandable. We have no need to delve into any statute-of-limitation issue.
At the outset, Casey urges us to use the four-factor test the United States Supreme Court outlined in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to assess his claimed constitutional deprivation. But that test addresses a criminal defendant's deprivation of Sixth Amendment speedy trial rights based on government delays after charges have been filed. The test is inapposite here, since Casey complains about the State's delay in identifying and charging him in this case.
The United States Supreme Court, however, addressed the due process considerations at issue here in United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), and fashioned a different assessment emphasizing demonstrable prejudice to the defendant as a necessary condition for any potential violation. But prejudice alone typically will not be a sufficient condition to grant a criminal defendant relief from the delayed filing of charges on due process grounds. 431 U.S. at 790 (“[P]roof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.”). The Court held that a precharging delay does not violate a criminal defendant's due process rights “even if his defense might have been somewhat prejudiced by the lapse of time.” 431 U.S. at 796. To cross that constitutional threshold, the circumstances would have to offend “ ‘fundamental conceptions of justice’ ... which define ‘the community's sense of fair play and decency.’ “ 431 U.S. at 790. A defendant must show something in addition to material prejudice such as a bad motive for the delay.
In Lovasco, the Court retraced and extended a path it had begun several years earlier in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In Marion, the Court recognized that Sixth Amendment speedy trial rights do not come into play until an arrest has been made or charges filed and, therefore, do not apply to precharging delays. 404 U.S. at 321. The Marion Court, however, acknowledged the government's concession that a delay in charging a criminal defendant undertaken to gain a tactical advantage combined with substantial prejudice to the defendant would violate the Due Process Clause. 404 U.S. at 324. The Lovasco decision noted that concession, as well. 431 U.S. at 795 n. 17. In both cases, however, the Court declined to describe “in the abstract” what governmental conduct, coupled with significant prejudice to the defendant, would create a precharging due process violation. Lovasco, 431 U.S. at 796–97 ; see Marion, 404 U.S. at 324.
We can fairly conclude that delay in charging a criminal defendant will rise to a due process violation only when the lapse of time results in actual and material prejudice to the defendant and the delay may be attributed to some sort of government conduct implicating dereliction, misfeasance, or malevolent purpose. The overall impact must be such as to offend judicial notions of fundamental fairness.[