Opinion
No. 110,629.
2015-02-27
STATE of Kansas, Appellant, v. Andrew ANUNDA, Appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.Crystalyn M. Oswald and Patrick I. Hurley, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant.Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Crystalyn M. Oswald and Patrick I. Hurley, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State appeals from the district court's order dismissing its case against Andrew Anunda. The district court held that Anunda had been denied his right to a speedy trial. The State dismissed a prior case against Anunda 4 days before jury trial and simultaneously filed this case charging a similar, though lesser, offense. The district court ultimately found that the dismissal was not for necessity but rather was a subterfuge to avoid going to speedy trial on the original charges the State no longer wanted to pursue. Consistent with State v. Goss, 245 Kan. 189, Syl. ¶ 2, 777 P.2d 781 (1989), the district court tacked the speedy trial time accrued under the first case to time accrued under this case. The total far exceeded the 90–day speedy trial limit in K.S.A.2013 Supp. 22–3402(a) so the district court discharged Anunda. On the circumstances demonstrated in this case and the rule in Goss, we affirm. We do not reach, then, the constitutional speedy trial and due process violations the district court held also justified dismissal.
Factual and Procedural background
Because the circumstances here drive the outcome of the case, we provide a detailed procedural history.
On September 21, 2012, on a probable cause warrant approved by the district court, Anunda was arrested for attempted rape, criminal restraint, and aggravated sexual battery. He allegedly committed these offenses against C.B. on August 20, 2012. An information was filed September 24, 2012, and on September 27, 2012, in case No. 12 CR 860, the State formally charged him with only attempted rape and criminal restraint, omitting for unknown reasons the charge of aggravated sexual battery for which he had also been arrested. Anunda was unable to post bond so he remained in custody. He was bound over for trial at his preliminary hearing October 29, 2012, and arraigned on the two counts charged. The State did not ask the district court to bind Anunda over on the additional charge of aggravated sexual battery, an option under K.S.A.2013 Supp. 22–2902(3). In subsequent proceedings, the State acknowledged that its proof demonstrated probable cause to bind over on that additional offense. The State never explained why it made no such request.
The court set Anunda's jury trial for January 22, 2013, roughly a week before his statutory 90–day speedy trial time would expire. The case moved directly toward trial as neither party requested any continuances. Then, at the last scheduled status conference in preparation for trial held January 11, 2013, the State asked for permission to file an amended information. The State sought to add back in the charge it earlier omitted from the information, aggravated sexual battery. It proposed to add that charge as an alternative count to the currently charged attempted rape. Defense counsel objected to the amendment. The district court conducted a hearing on this dispute on January 14, 2013. Anunda objected because the added offense had somewhat different elements than the offenses already charged and there had been no preliminary hearing on that additional offense. Defense counsel summed up her argument in the following:
“So I think what it looks like to me, Judge, is if the State wanted to charge aggravated sexual battery, they should have charged it in a separate count and it should have been charged in the beginning. We should've had a preliminary hearing on it, and it's too late basically at this time to charge that charge now.”
The parties and district court then discussed the trial complications involved in instructing on alternative counts. The State did not explain why it suddenly felt the need to add the alternative charge. It contended that no new preliminary hearing was needed because the evidence at the original preliminary hearing was sufficient to bind Anunda over on the alternative count. The prosecutor then commented:
“I would state that the alternative charge is proper given the facts of the case, that the jury should be allowed to determine which of these two charges best represents what occurred in terms of the State's evidence that will be presented. (Emphasis added.)
“And in terms if the defense needs additional time, I'm not in any way trying to file this to try to delay his constitutional rights to a trial, but the remedy would be to ask for additional time, if needed.”
Defense counsel responded to the State's assertion that Anunda should ask for a trial continuance if he needed more time to prepare for the added alternative count, stating:
“Judge, I was allowed to cross-examine [C.B. at the preliminary hearing] as it related to the elements of attempted rape but I did not cross-examine her as it related to aggravated sexual battery because it wasn't charged, so we didn't get that right.
And I'm sorry, Judge, as it relates to whether or not he can have his trial speedily 90 days after his arraignment or whether we should ask for a continuance, I think it violates due process and it shows more prejudice that we have to be in a situation where we are having to choose between constitutional rights.”
The district judge denied the State's request to amend the information to add the alternative count, stating:
“But if the Court does make the finding that this can be added, he [the defendant] is in a position, according to his attorney, of indicating that he would need more time to prepare. This is set for trial next week and he's in custody, and because of the Court's calendar it's already extended I think a bit beyond 90 days, and that is such an important constitutional right more so for one in custody with a 90–day right to a speedy trial than someone who's on bond and not suffering quite the consequences of a person who's been unable to make bond. And I don't think that it is fair to place him in that position of deciding, if the new charge is allowed, whether he wants to go forward with his attorney saying I really need more time or whether he wants to have to stay in custody while she prepares, so I think given the date of the filing of the amended information that that does cause prejudice to the defendant and the alternative of aggravated sexual battery will not be allowed at the trial which is scheduled for just next Tuesday.”
On the Friday before trial the State filed an information in this new case No. 13 CR 55 charging Anunda with a lone count of aggravated sexual battery. Just over an hour later, the State dismissed 12 CR 860. The State has not graced us with a copy of the motion to dismiss 12 CR 860, the resulting order of dismissal, or any transcript of any hearing on the dismissal. The record on appeal does contain a copy of the e-mail notification of the dismissal and refiling the prosecutor sent to court and counsel. It states: “I am filing a motion to dismiss the Anunda case for necessity. I am filing a new case with the charge of Aggravated Sexual Battery. I apologize for the late notice but as I have met with witnesses this week, I made the decision to proceed in this manner.”
The court allowed Anunda to be released on his own recognizance under the new case. He was directly taken into federal custody by Immigration and Customs Enforcement (ICE) to face deportation back to Kenya. ICE later released him to answer the charges in this case, and he was back in state custody in April, 2013. Defense counsel then filed a motion to dismiss for a violation of Anunda's right to a speedy trial. The State filed its response.
At the May 2, 2013, hearing on the motion, the record indicates that the “necessity” the prosecutor had claimed existed at the time of the dismissal was that the State had located an out-of-state witness. The new prosecutor for the State discussed this necessity claim with some candor. He stated:
“As to whether or not the original case was dismissed out of necessity, I don't think anybody here is under the illusion that the primary reason that the State dismissed that case was because of Jerry Shoecraft, a witness that the State wished to have here. Certainly that was a consideration. The State believed that Mr. Shoecraft was a valuable witness and wanted him here for the trial.
“But primarily the reason why this case was dismissed was because the State wished to put in front of the jury the charge of aggravated sexual battery. The State had sought to amend the original information to allow that charge to be charged in the alternative. The State—I mean, I apologize, the Court ruled that the State could not do that, which was certainly within the Court's discretion to do. And based on that and the fact that Mr. Shoecraft wasn't going to be available for the trial, the State felt that it had to dismiss the case and refile it.”
The district court pressed the prosecutor on just what evidence Shoecraft would add to the case. The prosecutor responded: “So I think that any value he would have as a witness would be in testifying regarding the alleged victim's actions immediately following her exit from the apartment and her demeanor and her interactions between that point and when police arrived.” In light of the State's other witnesses' testimony, the prosecutor acknowledged that Shoecraft was not actually a “material witness” and that the State could proceed without him. The State also acknowledged that no new evidence was gleaned from the witness interviews the prosecutor conducted during the week before the dismissal. Actually, the case was dismissed because the prior prosecutor reevaluated the case and wanted to proceed on the lesser, refiled charge.
The original prosecutor, Amy McGowan, did not testify to explain her dismissal of the prior case. We do not know why she did not come to the January 11, 2013, pretrial hearing with a proposed amended information that charged only the offense she wanted to try, i.e., aggravated sexual battery. Because she did not do that but, rather, insisted on adding that charge to others, we can never know if the defense would have agreed to such a straight-forward amendment or if the district court would have granted the amendment even if Anunda had objected.
The State argued that, under the speedy trial statute and State v. Gill, 48 Kan.App.2d 102, 283 P.3d 236 (2012), rev. denied 298 Kan. –––– (February 18, 2014), it had the power to dismiss a case, immediately refile a different charge, and restart Anunda's speedy trial clock from the beginning.
In ruling on the motion, the district court determined that the State did not dismiss the prior case out of necessity, based on its current counsel's acknowledgements. The court also agreed with and quoted with favor Anunda's contention that “[a]s a policy matter, the State should not be able to just dismiss and refile charges which could have been brought in the beginning of the case as to get around the speedy trial requirements, by merely relying on the [“new charge”] language in case law, especially when the Court has determined the State cannot do so, as it would be prejudicial to the defendant's assertion of his right to a speedy trial.”
But the district judge went on to hold as follows:
“So although I agree with [defense counsel's] statement, and see this as a blatant end run around the Court's ruling on the State's motion to amend that was filed in the first case, I don't make law at the District Court level. I follow the law that's stated by the Appellate Courts. And the Court of Appeals has clearly stated that what the State has done is permissible. This is not an identical charge, and according to the panel in Gill, ... [it] would allow this, and so the motion to dismiss is denied.”
On May 22, 2013, the district court held a preliminary hearing in this new case. The State relied entirely on the transcript of C.B.'s preliminary hearing testimony in the prior case. We do not have that transcript. We do have the record from the subsequent jury trial. If C.B. said at the preliminary hearing what she said at trial, C.B. believed Anunda was trying to digitally rape her because, while he held her by the throat, he tried to get his fingers into her panties but failed because the panties were too tight. We cannot be sure she gave this testimony. The record on appeal confirms that C.B. told the original investigating officers that she had been digitally penetrated.
At any rate, the district court bound Anunda over for trial on aggravated sexual battery and arraigned him. Within 90 days of that date the district court conducted, commencing August 12, 2013, Anunda's jury trial. Of some note, the State did not call Shoecraft as a witness. The trial resulted in a hung jury, with the jurors reportedly voting 9 to 3 in favor of acquittal. The district court declared a mistrial.
The State elected to retry the case. Anunda moved for acquittal and also renewed his motion to dismiss on speedy trial grounds, citing additional authority.
The district court heard posttrial motions on September 20, 2013. The district court took the matters under advisement and issued a written memorandum opinion on September 25, 2013. On reconsideration, the district court found that Anunda's speedy trial rights were after all violated. The district court held that the State's dismissal of the prior case and its simultaneous filing of the different but quite similar new charge arising from the same facts constituted a “subterfuge.” The court stated: “When the court denied the Motion to Amend finding prejudice to Mr. Anunda, the State dismissed and re-filed charging the very crime the Court had not allowed. This was purely tactical to circumvent the court's denial of the Motion to Amend, resulting in a circumvention of the defendant's right to a speedy trial, as set out above.” The district court found that 162 days should be charged to the State against Anunda's statutory right to a speedy trial, far in excess of the 90–day limit, and dismissed the case.
The district court also held that the State violated Anunda's rights to a speedy trial under the Sixth Amendment and his rights to due process under the Fifth and the Fourteenth Amendments to the United States Constitution. In light of our decision below, we need not address those rulings.
The State provided documentation in the record on appeal showing that ICE deported Anunda on June 23, 2014, and he was flown back to Kenya.
The State timely appeals. We have jurisdiction to hear the State's appeal pursuant to K.S.A.2013 Supp. 22–3602(b)(1), as the order of the district court dismissed the case against Anunda.
Analysis
Whether the State has violated a defendant's statutory right to a speedy trial is a question of law. We conduct an unlimited review over such questions and owe no deference to the decision of the district court. State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011) (quoting State v. Mitchell, 285 Kan. 1070, 1080, 179 P.3d 394 [2008] ). Likewise, to the extent that this appeal requires the application of or interpretation of K.S.A.2013 Supp. 22–3402(a)–formerly K.S.A. 22–3402(1), this court exercises unlimited review. See State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
The State alone is responsible for bringing the accused to trial within the statutory time limitation. State v. Breedlove, 295 Kan. 481, 486, 286 P.3d 1123 (2012). The accused has no obligation to take affirmative action to protect his or her statutory speedy trial right. 295 Kan. at 486. The statutory speedy trial clock is triggered at arraignment. See Thomas, 291 Kan. at 692, 694 (days between arraignment and next event were assessed against the State); State v. Vaughn, 288 Kan. 140, 146, 200 P.3d 446 (2009) (same).
In State v. Otero, 210 Kan. 530, 531, 502 P.2d 763 (1972), our Supreme Court stated: “The concept of a speedy trial is threaded throughout this nation's entire history. It has been given expression not only in the Sixth Amendment to the Constitution of the United States, but in Section 10 of the Bill of Rights of the Kansas Constitution, as well. No constitutional precept is more inviolable, no right of an accused more precious, than that one who is accused of crime be tried promptly and with due dispatch.” (Emphasis added.)
The State argues that, pursuant to Gill, the dismissal of the attempted rape and criminal restraint charges and the filing of the aggravated sexual battery charge reset the statutory speedy trial clock. 48 Kan.App.2d 102 at 111–14. We acknowledge, as the State cites us to in its brief, that the Gill panel stated the following:
“Based on [ United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982),] and the cases cited above applying K.S.A. 22–3402, we hold, as a matter of first impression, that when the State dismisses a charge and files another one, the constitutional speedy trial clock will start anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed.” (Emphasis added.) 48 Kan.App.2d at 113.
As is readily apparent, though, the Gill panel was confronting issues involving the right to a speedy trial under the Sixth Amendment. It is true that the panel analyzed statutory speedy trial cases, but, as the Gill panel clearly expressed, that was to facilitate its analysis of the constitutional violation claims before it and not to separately rule on statutory speedy trial rights. Regarding bad-faith dismissals and refilings under a Sixth Amendment analysis, we note that Syllabus paragraph 6 in Gill provides:
“The Court in United States v. MacDonald, 456 U.S. 1, 10 n. 12, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), indirectly suggested that bad faith on the part of the State in dismissing and refiling charges against a defendant could result in the time period between dismissal and refiling being considered as part of the delay in bringing a defendant to trial for speedy trial purposes. The State acts in bad faith when it dismisses charges in order to evade the Sixth Amendment's speedy trial guarantee.” 48 Kan.App.2d 102, Syl. 16.
Gill is a helpful resource concerning Sixth Amendment speedy trial issues. But it does not dictate the outcome of our analysis of the application of State v. Goss, 245 Kan. 189, Syl. ¶ 2, 777 P.2d 781 (1989), relied on by the district court, to the statutory right to a speedy trial.
In State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979), our Supreme Court stated:
“As we said in [ State v. Warren, 224 Kan. 454, 458, 580 P.2d 1336 (1978) ], the purpose of K.S.A. 22–3402 is to implement and define the constitutional guarantee of a speedy trial and the statute establishes certain maximum time limits within which a defendant must be brought to trial. Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute. As pointed out by the trial court, our prior cases relied upon by the State arose out of different factual situations or issues than those now before the court. It should also be noted that no attempt was made by the State to secure additional time in the first case to develop evidence as contemplated by K.S.A.1978 Supp. 22–3402(3)(C).”
In Cuezze, the court approved the use of the extraordinary remedy of tacking together the speedy trial times that had elapsed in separate, successive cases when the State failed to show necessity for an intervening dismissal. When those times were added together, the right to a speedy trial was shown to have been violated. 225 Kan. at 277–79.
In State v. Goss, 245 Kan. 189, 192, 777 P.2d 781 (1989), the Supreme Court stated: “Dismissals and refilings when the statutory period is about to expire are suspect and a showing of necessity must be made.” The court made specific reference to tacking as a remedy for the State's abuse of an accused person's statutory right to a speedy trial:
“In order to exceed the 90–day limit, one would have to tack on a major portion of the time defendant was being held in the prior case. We have tacked on such time only under exceptional circumstances where it is obvious that a dismissal and refiling was clearly a subterfuge engaged in by the State to avoid dismissal under the speedy trial statute. In State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979), two of the defendants were arraigned in the first case and shortly before the statutory speedy trial period would have expired, these charges were dismissed and a virtually identical complaint was filed. We held that the State cannot dismiss and refile charges solely to set the statutory clock back to zero. To hold otherwise, we reasoned, would defeat the purpose of the statute. Dismissals and refilings when the statutory period is about to expire are suspect and a showing of necessity must be made.” 245 Kan. at 192.
The Goss court stated a fundamental principle in Syllabus paragraph 2 of the opinion:
“Ordinarily, the 90–day provision of K.S.A. 22–3402 commences to run only at the time of arraignment, and time involved prior thereto including prior dismissal of the same or similar charges is not included. An exception thereto occurs when the dismissal of a prior case and the subsequent refiling constitute a subterfuge to avoid the effect of the statute.” (Emphasis added.)
The State acknowledges in its opening brief that the original and refiled charges were similar:
“Though the elements are similar, and the facts of the present case could support either charge, Attempted Rape and Aggravated Sexual Battery are two different charges. Attempted Rape requires an overt act or attempt to ‘knowingly’ engage in ‘sexual intercourse with a victim who does not consent to sexual intercourse ... [w]hen the victim is overcome by force or fear.’ K.S.A. [2013 Supp.] 21–5503, [K.S.A.2013 Supp.] 21–5301. Aggravated Sexual Battery is ‘the touching of a victim, who is 16 or more years of age and who does not consent thereto with the intent to arouse or satisfy the sexual desires of the offender or another ... [w]hen the victim is overcome by force or fear.’ K.S.A. [2013 Supp.] 21–5505.”
We have conducted our unlimited review of this statutory speedy trial issue. Here the State dismissed its prior case against Anunda without showing any legal necessity. The contention the State made at the time of that dismissal, that Shoecraft was a necessary witness, was never demonstrated as true. When the district court denied the State's motion to amend the information, it acted well within its powers to do so. See K.S.A. 22–3201(e). The State did not request a trial continuance, perhaps because that would have required a showing of good cause. See K.S.A. 22–3401. Rather, the State simply dismissed the charges it had decided it did not want to take to Anunda's timely scheduled jury trial. It then contemporaneously refiled the charge it wanted to pursue, claiming it was entitled to a fresh speedy trial clock. The State never explained why it kept the aggravated sexual battery charge it ultimately chose to pursue out of the original information. The dismissal and subsequent refiling were, just as is described in the Goss Syllabus, “a subterfuge to avoid the effect of the statute” concerning Anunda's right to a speedy trial. We find that the principle stated above from Syllabus paragraph 2 in Goss is clearly broad enough to cover the factual circumstance we have here where the State dismissed a “similar” charge to the one it refiled. We agree with the district court: The above statement of the law in Goss is precedential in value and is directly applicable to the facts here.
The remedy recognized in Goss and Cuezze should be applied here. That remedy is to tack the speedy trial time from Anunda's prior case, 80 days from arraignment to dismissal, to the time that elapsed in this case from arraignment to the date of the start of Anunda's jury trial, 82 days. That total speedy trial time, then, of 162 days for one in custody is far in excess of that allowed under the applicable version of K.S.A. 22–3402. See K.S.A.2013 Supp. 22–3402(a); c.f. K.S.A. 22–3402(1). The State violated Anunda's right to a speedy trial.
To summarize our narrow ruling here, we hold: the State can violate the speedy trial rights of an accused when it arrests the accused for a particular charge and others, then does not actually include that particular charge in the information, then does not ask that the accused be bound over on that particular charge at the preliminary hearing, then, 10 days before trial asks that the particular charge be included as an alternate count, relying on the preliminary hearing record for probable cause, and, when that request is denied, then, as a subterfuge, dismisses the case 4 days before the trial and simultaneously refiles a case containing only that particular charge if the tacked together statutory speedy trial time in the cases exceeds that prescribed by the applicable section of K.S.A.2013 Supp. 22–3402.
Because we are affirming on this basis, it is not necessary that we consider the other grounds on which the district court ruled: that the State had violated Anunda's Sixth Amendment right to a speedy trial and his Fifth and Fourteenth Amendment Due Process right to the same. We do note that the State failed to brief any argument to reverse the district court's Due Process ruling. That failure alone could justify affirming the district court. See State v. Novotny, 297 Kan. 1174, Syl. ¶ 1, 307 P.3d 1278 (2013).
Affirmed. POWELL, J., dissenting:
I dissent because the majority wrongly modifies the plain language of the speedy trial statute, K.S.A.2013 Supp. 22–3402(a)–formerly K.S.A. 22–3402(1), and the well-established rule which flows from it that “[a]bsent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by [K.S.A. 22–3402].” (Emphasis added.) State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979). Because the State dismissed the original charges and filed a different charge, the statutory speedy trial clock was reset, and Anunda's statutory speedy trial rights were not violated.
At the time Anunda was originally charged, subject to certain exceptions, K.S.A.2013 Supp. 22–3402(a) required that a person charged with a crime and held in jail solely because of such charge was entitled to be released and to have the charge dismissed if he or she was not brought to trial within 90 days. To prevent prosecutors from getting around this time limitation by simply dismissing and refiling the case, and because “[t]he purpose of [the] statute [was] to implement and define the constitutional guarantee of a speedy trial,” State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336 (1978), the rule enunciated by our Supreme Court in Cuezze required that if the State dismissed and refiled an identical charge, the time after arraignment associated with the prior case would be tacked on to the second case for speedy trial purposes unless the State could show the necessity for dismissing the first case. 225 Kan. at 276–78; see State v. Ransom, 234 Kan. 322, 325, 673 P.2d 1101 (1983) (“State cannot dismiss a criminal action and commence a new one containing identical charges—absent a showing of necessity to avoid [speedy trial] time limitations”), cert. denied 469 U.S. 818 (1984). This rule has been cited to and followed by our Supreme Court in subsequent cases. See, e.g., State v. Smallwood, 264 Kan. 69, 75, 955 P.2d 1209 (1998) (no speedy trial violation where second complaint not identical but contained more serious crimes); State v. Jamison, 248 Kan. 302, 304, 806 P.2d 972 (1991) (State cannot avoid time limitations of speedy trial statute by dismissing action and refiling identical charges); Ransom, 234 Kan. at 325 (same).
But the question arises, like in the present case, as to what statutory speedy trial rule to apply when the State decides to dismiss the original charge and file a new and different one. Fortunately, both our Supreme Court and this court have addressed this question. The most comprehensive statement of the rule was recently enunciated by another panel of our court in State v. Gill, 48 Kan.App.2d 102, 113, 283 P.3d 236 (2012), cert. denied 298 Kan. –––– (February 18, 2014). While the majority is correct that Gill examined whether the time period prior to the original charges being dismissed should be counted in the new case for constitutional speedy trial purposes, Gill also analyzed the caselaw concerning whether to count prior time periods for statutory speedy trial purposes and applied that same rule to a constitutional speedy trial analysis. The Gill court stated, correctly in my view:
“Kansas courts have held that the statutory speedy trial clock starts anew in the second case if the State dismissed the first case because of necessity or the charge in the second case is not identical to the charge that was previously dismissed. If, however, the first case was not dismissed because of necessity and the charge in the second case is identical to the charge dismissed in the first case, then courts will consider the dismissal of the first case as merely tolling the statutory speedy trial clock.” 48 Kan.App.2d at 113.
In other words, no showing of necessity is required to justify the dismissal of the first case and to reset the statutory speedy trial clock when the charge in the second case is not identical to the charge dismissed in the first case.
Our Supreme Court implicitly employed this approach when it rejected a speedy trial violation claim in Smallwood, 264 Kan. at 75. There, the defendant was originally charged with second-degree murder, but that charge was dismissed and a second case was filed which charged him with first-degree, felony murder. Smallwood, relying on Cuezze, claimed the time in the first case should be tacked on to the second because the dismissal of the first was designed to get around the statutory speedy trial time limitations. The court rejected this, stating: “Here, the assertion fails because the State did not file the identical charges in the second case to avoid the time limitation imposed by the statute; it charged more serious crimes in the second complaint.” 264 Kan. at 75. The court did not conduct a necessity analysis because the charge in the second case was not identical to the first.
Our court first addressed this issue in State v. Hunt, 8 Kan.App.2d 162, 167, 651 P.2d 967 (1982). Hunt was originally charged with aggravated assault, but the case was dismissed on the date of trial due to the State's inability to locate a witness. Four days later, the State filed a new case, this time charging the defendant with aggravated battery, unlawful use of weapons, and making a terroristic threat. The second case was subsequently amended with the aggravated battery charge changed to aggravated assault, and the third charge, terroristic threat, dropped. Hunt sought dismissal of the second case on speedy trial grounds, and the State resisted, claiming the new case involved additional charges of greater severity. The court sided with both parties in part, holding that since the defendant was arraigned on the amended charge of aggravated assault in the second case, which was identical to the first, and since the statutory speedy trial time had elapsed as to that charge, that charge was dismissed because there was no showing of necessity. 8 Kan.App.2d at 166–67. But as to the second charge of unlawful use of weapons, the court stated that “each count in an information is to be regarded as if it were a separate information” and held that since the charge was not contained in the original information, the statutory time limits did not begin to run until the arraignment on the second case, which meant the statutory speedy trial time limits had not been met. 8 Kan.App.2d at 166–67. Again, no showing of necessity was required or discussed as to that charge. See also State v. Clemence, 36 Kan.App.2d 791, 798, 145 P.3d 931 (2006) (“both the original case and the refiled case must be considered as a singular calculation, at least as to charges that were common to both cases”), rev. denied 283 Kan. 932 (2007); State v. Harden, No. 98,078, 2009 WL 596500, at *2 (Kan.App.2009) (unpublished opinion) (new speedy trial clock started on count in second case not contained in first; no showing of necessity for dismissal of first case), rev. denied 289 Kan. 1282 (2009).
However, the majority sidesteps this well-established rule as recently articulated in Gill in favor of Syllabus paragraph 2 contained in State v. Goss, 245 Kan. 189, Syl. ¶ 2, 777 P.2d 781 (1989), claiming we are bound by it. I disagree.
“While the general rule is that we are duty bound to follow Supreme Court precedent, that duty does not extend to dicta in a Supreme Court opinion.” Dawson v. Bruce, 36 Kan.App.2d 221, 224, 138 P.3d 1234 (2006). Moreover, “ ‘[w]hat is said in an opinion or the syllabus thereof always is to be read and interpreted in the light of the facts and questions presented in the case.’ “ 36 Kan.App.2d at 224 (quoting Dallam v. Hedrick, 16 Kan.App.2d 258, 263, 826 P.2d 511 [1990] ).
Goss, 245 Kan. 189, Syl. 12 states:
“Ordinarily, the 90–day provision of K.S.A. 22–3402 commences to run only at the time of arraignment, and time involved prior thereto including prior dismissal of the same or similar charges is not included. An exception thereto occurs when the dismissal of a prior case and the subsequent refiling constitute a subterfuge to avoid the effect of the statute.”
Respectfully, I submit the portion of this syllabus which suggests a necessity or subterfuge examination is required involving a “similar” prior charge is unsupported either in the text of the Goss opinion itself or in the holdings of the case. In Goss, our Supreme Court rejected any allegation of a statutory speedy trial violation on the basis that the defendant had not been held solely on the charge at issue and because arraignment in the first case had not even occurred. 245 Kan. at 192. Moreover, the text upon which the syllabus is purportedly based makes no use of the words “same or similar charges”; instead, the text includes an incorrect statement that the Cuezze court dismissed “virtually identical” charges when, in fact, the new charges filed in Cuezze were identical. Goss, 245 Kan. at 192; see Cuezze, 225 Kan. at 277 (“Here identical charges were filed against defendants in the second case....”).
Unfortunately, the majority is lead astray by Goss unnecessarily suggesting that all “[d]ismissals and refilings when the statutory period is about to expire are suspect and showing of necessity must be made.” 245 Kan. at 192. Respectfully, Goss misstates the holding in Cuezze; a necessity analysis is done only when the State refiles identical charges. 225 Kan. 277. Significantly, other than the majority's opinion, I am unable to find any subsequent case which approvingly cites to this “rule” as part of its holding when the prior charge was different than second. In fact, the Supreme Court in Smallwood, decided after Goss, completely ignores it. Smallwood, 264 Kan. at 75; see also State v. Clovis, 254 Kan. 168, 173–75, 864 P.2d 687 (1993) (approving Goss rule where charges at issue identical to those in original information).
Therefore, in my view, the correct statement of the law as it concerns statutory speedy trial time limitations is that the speedy trial clock is reset if the new case involves an identical charge and a showing of necessity has been made to support the dismissal of the prior case or if the charge in the second case is not identical to the charge dismissed in the first. Because the charge in Anunda's second case was not identical to the charges in his first case, the State did not need to show necessity for its dismissal, and the statutory speedy trial clock began anew with Anunda's arraignment in the second case.
Finally, even if I am misinterpreting the law on how to calculate statutory speedy trial limitations and the majority is correct that the State is required to show the necessity of its dismissal of the prior charges because any dismissal and refiling of charges “when the statutory period is about to expire are suspect,” Goss, 245 Kan. at 192, a review of the record in this case does not support a finding of subterfuge. Goss instructs us that the time a defendant is held on a prior case is “tacked on ... only under exceptional circumstances where it is obvious that a dismissal and refiling was clearly a subterfuge engaged in by the State to avoid dismissal under the speedy trial statute.” 245 Kan. at 193. Here, exceptional circumstances do not exist because it was not obvious the State's action in dismissing and refiling a different charge was clearly a subterfuge to avoid dismissal under the speedy trial statute.
Remember, the State originally charged Anunda with attempted rape and criminal restraint. Eleven days before trial, and approximately 2 weeks before Anunda's statutory 90–day speedy trial time would expire, the State sought to add an alternative count of aggravated sexual battery. The district court denied the motion, finding prejudice to Anunda. Not satisfied with this result, and possibly doubting the strength of the evidence to convict on the attempted rape charge, the State dismissed the original charges and filed a new information on the Friday before trial, charging Anunda with the sole count of aggravated sexual battery.
Unsurprisingly, the district court did not react well to this end run by the State. At the hearing on Anunda's motion to dismiss the new charge on speedy trial grounds, the district court pointedly questioned the prosecutor about the necessity for the dismissal and whether the State's actions were merely a subterfuge to avoid the speedy trial limitations. The prosecutor candidly (the majority's description) explained the primary reason for the dismissal was because the State “wished to put in front of the jury the charge of aggravated sexual battery.” The district court denied Anunda's motion, stating it was bound by our court's opinion in Gill. After a trial in which the jury hung, Anunda renewed his motion for dismissal based upon speedy trial grounds. The district court, this time armed with the Kansas Supreme Court's opinion in Goss, held the State's actions were a mere subterfuge to avoid the speedy trial time limitations and dismissed the case.
As the majority notes, the prosecutor “candidly” stated the new charge of aggravated sexual battery was filed because that was the charge the State wanted to put before the jury—the charge the district court had refused to allow when the State earlier had tried to amend the original information, the kerfuffle over a witness notwithstanding. If the State were merely trying to restart the clock, it would not have sought to amend the original information in the first place. Remember, the defendant's counsel protested how the amendment included a much different charge (in the motions to dismiss, counsel argued how similar the charge was), how Anunda would be entitled to a new preliminary hearing, how counsel would need to question the victim about the new charge at the additional preliminary hearing, and how more time to prepare would be required. The State did not ask for a continuance with the amendment, and the record shows that probable cause was established on the new charge by a simple introduction of the transcript of the original preliminary hearing; no additional questioning of the victim was done. There was no subterfuge by the State to avoid the speedy trial clock; it simply attempted to do what the law allows. There was no violation of Anunda's statutory speedy trial rights.
As for the district court's additional findings that Anunda's constitutional speedy trial and due process rights were violated because of the delays, in the interests of brevity and practicality—Anunda is an alien who had been residing illegally in the United States for roughly 12 years and was deported to his native Kenya while the case has been on appeal—and for reasons articulated in Gill, 48 Kan.App.2d at 116–17, I would simply find no violation. The time delay was not presumptively prejudicial, and Anunda cannot show actual prejudice as he obtained a hung jury at his trial. I would reverse the district court and remand for retrial—if the State wishes to extradite Anunda.