State v. Bailey ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,613
STATE OF KANSAS,
Appellee,
v.
BRIAN BAILEY,
Appellant.
SYLLABUS BY THE COURT
1.
An appellate court has discretion to consider application of the doctrine of
res judicata for the first time on appeal if it involves only a question of law arising on
proved or admitted facts and is finally determinative of the case.
2.
Here, under the issue preclusion doctrines, the criminal defendant may not
relitigate prior judicial determinations that the State does not possess biological material
related to the investigation or prosecution that led to the defendant's convictions. The
defendant is therefore not entitled to postconviction forensic DNA testing under K.S.A.
2020 Supp. 21-2512.
Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed June 10, 2022.
Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, was on the briefs for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.
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The opinion of the court was delivered by
LUCKERT, C.J.: Brian C. Bailey appeals the district court's summary denial of his
petition for forensic deoxyribonucleic acid (DNA) testing of biological material from a
rape kit. Bailey brings this appeal under K.S.A. 2020 Supp. 21-2512 more than three
decades after a jury convicted him of aggravated criminal sodomy in 1988. Before this
current proceeding, Bailey twice sought forensic DNA testing, and both times the district
court denied his motion. He did not appeal one of those orders but appealed the second
and lost on appeal. Given these prior proceedings and court orders, the State argues
application of res judicata principles prevents Bailey from relitigating the issues he raises
on appeal. We agree and affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
In 1988 CR 586, the State charged Bailey with two counts of aggravated criminal
sodomy for his role in an incident in the Wyandotte County jail. The State alleged that
Bailey and others attacked and sodomized another inmate.
At trial, the main evidence against Bailey was testimony from the victim and
others who identified Bailey as one of the perpetrators. A crime investigator also
testified. He told the jury that the victim was taken to a hospital where a forensic
examination rape kit was completed. The State presented no other evidence about the kit
or any examination of it. A Wyandotte County jury convicted Bailey.
Since then, Bailey has filed several postconviction motions or petitions, including
at least three related to his attempt to obtain postconviction forensic DNA testing. In each
of the three proceedings related to DNA testing, he has cited K.S.A. 21-2512, as authority
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for the district court to order the testing. K.S.A. 2020 Supp. 21-2512(a) sets out
circumstances under which the statute allows postconviction DNA testing.
He filed the first motion in 2005. He labeled the motion as one to correct illegal
sentence, and he filed it in his underlying criminal case, 1988 CR 586. The district court
judge denied the motion. The judge explained: "A search by the sheriff's office reveals
no evidence in its custody from this case. As a result, no testing is possible pursuant to
K.S.A. 21-2512." Bailey filed a notice of appeal but did not follow through and pursue
the appeal.
About five years later, Bailey filed the second motion related to DNA testing.
He again filed the motion in 1988 CR 586, and this time labeled it as "Motion for
Availability of Other Relief Pursuant to K.S.A. 60-2606." In it, he requested an
evidentiary hearing to explore whether the DNA evidence could be located or,
alternatively, to determine what happened to the DNA evidence collected in 1988. If the
evidence could not be located, he asked the judge to vacate his conviction.
The State responded by saying it had "reviewed the State's file in this matter and
noted that the rape kit that had been taken from the victim during the investigation had
been sent to the Kansas Bureau of Investigation [KBI] for testing in 1988." The State
provided KBI lab reports, which document that the KBI testing found no seminal fluid or
any foreign hairs. The State explained that the KBI also reported it no longer had
possession of the evidence and only had a blood sample from the victim and that the
Wyandotte County Sheriff's Department once again checked its evidence room and
determined it had no evidence associated with the case. The written response added that
"the State does not know what the disposition of the rape kit was other than it is not in the
two department's [sic] possession."
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The district court appointed counsel for Bailey and held a hearing. Following the
hearing, the district court judge denied the motion. In doing so, the judge found that a
rape kit had existed at one time, but neither the prosecutor's office nor any law
enforcement agency currently had the kit. The judge also found no evidence showed the
State had lost or destroyed evidence in bad faith. Finally, citing the KBI laboratory
report, the judge found the samples collected and examined by the KBI included nothing
that could be tested for DNA.
Bailey appealed, and the Court of Appeals affirmed the denial of Bailey's second
motion. State v. Bailey, No. 106,655, 2013 WL 195185 (Kan. App. 2013) (unpublished
opinion). In concluding its discussion, the Court of Appeals summarized three reasons
Bailey's motion failed. First, "[a]ny testing with today's technology would still be futile
because there is no evidence in the rape kit from which a genetic profile on anyone else
could be obtained." Second, the court held this meant no test could either implicate or
exonerate Bailey. Third, the court cited Arizona v. Youngblood, 488 U.S. 51, 57-58,
109 S. Ct. 333, 102 L. Ed. 2d 281 (1988), for its holding that the failure of police to
preserve potentially useful evidence is not a denial of due process of law unless the
defendant can show bad faith by police. The court then held that law enforcement could
not have acted in bad faith in destroying or failing to preserve the rape kit, because the
KBI had determined there was no biological material to test for DNA. 2013 WL 195185,
*2. The Court of Appeals issued a mandate after Bailey's time to request this court's
review of the decision had passed.
About seven years later, Bailey filed a "Petition for DNA testing Pursuant to
K.S.A. § 21-2512 (2020)" that has led to the current appeal. He filed it under a new case
number in district court but noted it related to 1988 CR 586. At the district court, the
State argued Bailey could not establish the required conditions for postconviction DNA
testing under K.S.A. 2020 Supp. 21-2512(a). In doing so, it repeatedly pointed out that
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the parties had litigated in other proceedings whether Bailey's situation met the statutory
criteria and each time the district court had determined Bailey was not entitled to testing
under the statute.
The district court denied the motion, and Bailey appealed directly to this court
under K.S.A. 2020 Supp. 22-3601(b)(3) (Supreme Court has jurisdiction if maximum
sentence is life).
ANALYSIS
Bailey raises several arguments, but our threshold consideration arises from the
State's contention that res judicata principles preclude this appeal. Res judicata is one of
three doctrines—the other two being law of the case and collateral estoppel—that put into
practice the policy that courts generally will not reopen matters already decided by a
court. State v. Collier, 263 Kan. 629, 631, 952 P.2d 1326 (1998). While differences exist
between the three doctrines, each of them has the same effect of allowing one opportunity
for argument and decision while avoiding relitigation of the same issue by the same
parties. 263 Kan. at 631. Collectively, these doctrines are often called "'preclusionary
doctrines.'" 263 Kan. at 634.
The State's res judicata argument relates to the effect of the prior rulings by the
district court and the Court of Appeals about Bailey's prior requests for postconviction
DNA testing. Again, Bailey made those requests through his two motions filed in the
criminal case. Now, Bailey brings his third request for testing, this time in a separate case
that began with his petition under K.S.A. 2020 Supp. 21-2512. While filed in different
cases and under different procedural statutes, in each Bailey has invoked K.S.A. 2020
Supp. 21-2512 as the basis for his right to obtain postconviction DNA testing. Despite the
different procedural forms, the State argues under the doctrine of res judicata Bailey
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cannot relitigate the prior determinations that he cannot meet the threshold requirements
of K.S.A. 2020 Supp. 21-2512(a).
K.S.A. 2020 Supp. 21-2512(a) allows certain criminally convicted individuals to
petition for postconviction forensic DNA testing
"of any biological material that:
"(1) Is related to the investigation or prosecution that resulted in the conviction;
"(2) is in the actual or constructive possession of the state; and
"(3) was not previously subjected to DNA testing, or can be subjected to retesting with new
DNA techniques that provide a reasonable likelihood of more accurate and probative
results." K.S.A. 2020 Supp. 21-2512(a).
In the earliest proceeding in which Bailey invoked K.S.A. 2020 Supp. 21-2512,
the district court held there is no biological material in the possession of the State, and
thus K.S.A. 2020 Supp. 21-2512 does not apply. See K.S.A. 2020 Supp. 21-2512(a)(2).
Bailey did not appeal that ruling. And in the second proceeding, the district court made
the same finding, and the Court of Appeals affirmed that holding. Bailey, 2013 WL
195185, at *2. Given that history, the State argues Bailey cannot relitigate these issues
here.
In response, Bailey argues the State cannot raise res judicata for the first time on
appeal. He also argues the current "DNA motion is not the same claim brought in the
prior actions, as those were specifically made for different relief." He notes the first
motion was one to correct an illegal sentence and the second sought relief from his
conviction. Finally, he argues no court has resolved the factual underpinnings of the
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issues. We reject Bailey's arguments and conclude res judicata principles preclude this
appeal.
We first examine whether the failure to raise the issue at the district court
precludes our consideration, and we hold it does not. Granted, the general rule is that
appellate courts consider only those matters the parties raised in the district court. See
State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982). Here, while in district court,
the State repeatedly argued Bailey had raised the issues in earlier litigation and had lost.
But it did not take that next step and ask the district court to hold the current proceedings
were barred under res judicata principles.
Even if we assume the State needed to be more explicit to preserve the issue, we
may still consider the argument on appeal. That is because preservation is a prudential
rule, rather than a jurisdictional bar, which means an appellate court has discretion to
apply exceptions. The State relies on an exception that allows us to consider issues raised
for the first time on appeal if the issue "'involves only a question of law arising on proved
or admitted facts and which is finally determinative of the case.'" State v. Parry, 305 Kan.
1189, 1193, 390 P.3d 879 (2017) (quoting Pierce v. Board of County Commissioners,
200 Kan. 74, 80-81, 434 P.2d 858 [1967]).
In Parry, we held the Court of Appeals had not erred in sua sponte raising a
different preclusion doctrine—specifically, the law-of-the-case doctrine applied in that
appeal. We also held that the Court of Appeals did not err in applying the doctrine to hold
the State could not relitigate in a second prosecution a suppression issue it had lost in the
initial prosecution of the same defendant. 305 Kan. at 1198. We noted that preclusion
issues present questions of law. 305 Kan. at 1193-94 (citing State v. Robertson, 298 Kan.
342, 344, 312 P.3d 361 [2013] [res judicata]; In re Care & Treatment of Sporn, 289 Kan.
681, 686, 215 P.3d 615 [2009] [res judicata and collateral estoppel]; Collier, 263 Kan. at
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634 [law-of-the-case doctrine]). And, focusing on the specifics of the appeal, we noted
"there are no asserted factual or procedural matters in controversy, and the doctrine, if it
applies, is dispositive of the appeal." 305 Kan. at 1194. We thus held the Court of
Appeals had discretion to apply the question-of-law-preservation exception and consider
the preclusion doctrine for the first time on appeal and that the Court of Appeals did not
abuse its discretion in electing to do so.
We must ask if the same question-of-law-preservation exception can apply here to
the State's assertion of the preclusion doctrine of res judicata. Within the criminal context
"[i]n Kansas, there are four requirements to apply res judicata: (1) identity in the thing
sued for; (2) identity of the cause of action; (3) identity of persons and parties to the
action; and (4) identity in the quality of persons for or against whom claim is made."
Robertson, 298 Kan. at 344 (citing Sporn, 289 Kan. at 686). We have also phrased these
requirements as being, "'(1) same claim; (2) same parties; (3) claims were or could have
been raised; and (4) a final judgment on the merits.' [Citations omitted.]" 298 Kan. at 344.
Neither the State nor Bailey raise a controversy about factual or procedural matters
that relate to our analysis of how those four requirements apply. Rather, the controversy
is about the legal effect of the previous procedures, which court records document and
are thus uncontroverted. Also, the prior rulings holding the State has no biological
material related to Bailey's convictions in its actual or constructive possession is
determinative of his ability to obtain postconviction forensic testing. See K.S.A. 2020
Supp. 21-2512(a).
Under those circumstances, as we did in Parry, 305 Kan. at 1193-94, we have
discretion to consider for the first time on appeal whether the doctrine of res judicata
precludes Bailey from relitigating issues or claims decided when he brought his previous
motions. We exercise that discretion and apply the res judicata doctrine because doing so
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fulfills the policy reasons that support the res judicata doctrine, which are "'to avoid
indefinite relitigation of the same issue, to obtain consistent results in the same litigation,
to afford one opportunity for argument and decision of the matter at issue, and to assure
the obedience of lower courts to the decisions of appellate courts.' Collier, 263 Kan. at
631." Parry, 305 Kan. at 1194-95.
Those policy reasons intertwine with our analysis of Bailey's second argument, in
which he contends res judicata does not strictly apply because he made different claims
each time. He first asked to correct his allegedly illegal sentence. He next sought relief
under K.S.A. 60-2606 in the form of an "'[o]rder' vacating and setting aside the judgment
in the above-captioned case and discharg[ing] the Defendant from the wrongful custody
of the Kansas Department of Corrections." But he premised both requests for relief on his
argument that he was entitled to testing under K.S.A. 2020 Supp. 21-2512. He argued the
lack of testing and the destruction or loss of evidence caused a violation of his due
process rights.
Bailey suggests the different procedural mechanisms he used means there is not an
identity of the cause of action or the same claim involved. Res judicata thus does not
apply, he argues. But this argument ignores our caselaw in which we have focused on the
substance of the arguments, rather than the procedural technicalities and have often used
the term "res judicata" as an umbrella term for all preclusion theories—res judicata,
collateral estoppel, and law of the case. See In re Tax Appeal of Fleet, 293 Kan. 768, 777,
272 P.3d 583 (2012) ("The district court's references to res judicata are broad enough to
encompass both claim and issue preclusion. The modern trend is to more precisely refer
to claim preclusion as res judicata and issue preclusion as collateral estoppel. [Citation
omitted.] But since it is not entirely clear whether the district court was relying upon
claim or issue preclusion, we will consider both doctrines under the general umbrella of
res judicata."); see also In re Care & Treatment of Sigler, 310 Kan. 688, 697-98, 448 P.3d
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368 (2019) (recognizing res judicata and collateral estoppel as distinct, but closely
related, doctrines intended to prevent relitigation of prior adjudications).
In State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008), and State v. Johnson,
269 Kan. 594, 602, 7 P.3d 294 (2000), for example, this court applied res judicata when a
defendant moved to correct an illegal sentence based on the same issue he had argued in
his direct appeal. And in Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 14, 136 P.3d 390 (2006),
we held the res judicata doctrine applied in a K.S.A. 60-1507 action to issues previously
resolved in the criminal case.
As to motions for forensic DNA testing, the Court of Appeals has applied
res judicata to bar a postconviction proceeding seeking DNA testing after the defendant
had requested the same testing during the criminal proceeding, the district court had
denied the motion, and the defendant had not pursued the DNA issue on direct appeal.
State v. Barnett, No. 121,233, 2021 WL 300700 (Kan. App. 2021) (unpublished opinion),
rev. denied 314 Kan. 855 (2021).
These holdings do not rigorously align with the modern trend of more precisely
referring to claim preclusion as res judicata and issue preclusion as collateral estoppel.
But they apply the general rule that "[a] judgment rendered by a court having jurisdiction
of the parties and subject matter is conclusive and indisputable evidence as to all rights,
questions, or facts put in issue in the suit and actually adjudicated therein, when the same
come again into controversy even though the subsequent proceedings are on a different
cause of action or claim." 50 C.J.S. Judgments § 1040.
This broad examination of the issue litigated by the parties also adheres to our
caution that "'courts must consider the substance of both the first and subsequent action
and not merely their procedural form'" when applying a preclusion doctrine. Bogguess v.
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State, 306 Kan. 574, 580, 395 P.3d 447 (2017). In Bogguess, we advised that "'a court
must conduct a case-by-case analysis that moves beyond a rigid and technical application
to consider the fundamental purposes of the rule in light of the real substance of the case
at hand.' [Citation omitted.]" 306 Kan. at 580. That brings us full circle to the
fundamental purposes of preclusive doctrines, which are to "'avoid indefinite relitigation
of the same issue, to obtain consistent results in the same litigation, to afford one
opportunity for argument and decision of the matter at issue, and to assure the obedience
of lower courts to the decisions of appellate courts.' Collier, 263 Kan. at 631." Parry, 305
Kan. at 1194-95.
Here, applying issue preclusion doctrines meet these fundamental purposes. The
foundation of Bailey's two earlier motions and this one is K.S.A. 2020 Supp. 21-2512.
And the district court has twice made the finding that no biological material remains in
the possession of the State. Bailey thus cannot meet the threshold requirement of K.S.A.
2020 Supp. 21-2512(a)(2). This also means he cannot jump the hurdle of (a)(2) to get to
(a)(3), which conveys that a serial motion can be filed when biological material in the
possession of the State "can be subjected to retesting with new DNA techniques that
provide a reasonable likelihood of more accurate and probative results."
Instead, Bailey tries to relitigate an issue already repeatedly resolved by a court.
He does so by collaterally attacking the district court's finding that the State has no
biological material, raising procedural objections, and making other arguments. But
Bailey had a chance to present those arguments in the earlier proceedings and in appeals
from those rulings. He did not pursue those arguments. He abandoned the first appeal,
and the second ended with the Court of Appeals affirming the district court. Bailey does
not dispute the prior rulings, nor does he argue that the State currently has possession of
the evidence. Because he raised the issue and lost one appeal and allowed another order
to become final without an appeal, res judicata (used as an umbrella term) prevents
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Bailey from relitigating whether the State has possession of biological material. See
Bogguess, 306 Kan. at 579 (res judicata applies "to all issues actually raised, and those
issues that could have been presented, but were not presented"); Conley, 287 Kan. at 698
(motions to correct illegal sentence are subject to res judicata and thus "may not be used
to breathe new life into an appellate issue previously adversely determined"); Johnson,
269 Kan. at 602 (motions to correct illegal sentence "may not be used as a vehicle to
breathe new life into appellate issues previously abandoned or adversely determined").
Although the district court judge did not base the dismissal of Bailey's petition on
issue preclusion grounds, the order may be affirmed on different grounds. See State v.
Williams, 311 Kan. 88, 91, 456 P.3d 540 (2020). We apply issue preclusion doctrines and
hold that Bailey may not relitigate prior judicial determinations that the State does not
possess biological material related to the investigation or prosecution that led to Bailey's
convictions. We thus affirm the district court's ruling on this alternative basis.
Judgment of the district court is affirmed.
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