State v. Hunter ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,084
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
RAYMON LEVI HUNTER,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed July 8, 2022. Appeal
dismissed.
Brian Koch, assistant district attorney, Thomas Stanton, district attorney, and Derek Schmidt,
attorney general, for appellant.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellee.
Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: During Raymon Levi Hunter's trial for possession of marijuana and
drug paraphernalia, the State objected to a line of questioning by the defense regarding
Hunter's mental state at the time of his arrest. The State argued Hunter did not comply
with the notice requirement of K.S.A. 22-3219(1), which rendered evidence regarding his
mental state to be inadmissible. The district court overruled the State's objection and a
jury ultimately acquitted Hunter of all charges. The State appeals. Finding consideration
of this question would not provide helpful precedent, this court dismisses the appeal for
lack of jurisdiction.
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FACTUAL AND PROCEDURAL BACKGROUND
Hunter was arrested on October 28, 2018, after a citizen reported that he was
digging in the front yard of an apartment complex just after midnight while wearing dark
clothing and a Halloween mask. When officers approached, Hunter identified himself and
informed them he was a member of a Native American tribe who had mineral rights to
the land. Police dispatch informed the responding officers that Hunter had active arrest
warrants, and he was arrested and transported to jail. When he was searched by jail staff,
multiple items were found in his pants pockets, including a yo-yo, rock, and a metal pen
casing. An officer described it as "a [hollow] part of a pen, like a metal pen that had the
innards taken out of it and had, with [his] training and experience, had been turned into a
metal, one-hitter pipe" that is commonly used to smoke marijuana. The pen casing was
sent to the KBI laboratory for testing. Testing revealed the presence of
tetrahydrocannabinol, the psychoactive ingredient found in marijuana, in the device. The
State charged Hunter with possession of marijuana with two or more prior convictions, in
violation of K.S.A. 2018 Supp. 21-5706(b)(3), and possession of drug paraphernalia with
intent to use it to introduce a controlled substance into the human body, in violation of
K.S.A. 2018 Supp. 21-5709(b)(2).
At Hunter's jury trial, Officer Cory Schmidt described Hunter's behavior the night
he was arrested as "bizarre" and "a little erratic." The officer added, "Especially it seemed
odd to me that somebody was digging in a front yard at 12:30 in the morning."
During cross-examination of Officer Schmidt, the State objected when defense
counsel asked the officer if Hunter demonstrated "any types of mental disease that would
be consistent with [Officer Schmidt's] training" at the time he approached Hunter at the
apartment complex. The prosecutor argued defense counsel was attempting to use mental
disease as a defense without following the statutorily required procedure found in K.S.A.
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22-3219(1). The prosecutor argued admitting the evidence was inappropriate and
irrelevant.
The district court overruled the State's objection but declined to address "the
application of the statute." Officer Schmidt proceeded to testify that Hunter was acting
odd, but he could not identify whether Hunter was suffering from a specific
psychological episode or source. Defense counsel did not further rely on this line of
testimony in her closing argument but focused on whether Hunter had knowledge of the
microscopic substance inside the broken pen, or whether the pen could be used as drug
paraphernalia, and whether the State had proven as much.
At the conclusion of the trial, the jury acquitted Hunter of all charges. The State
appeals.
ANALYSIS
The right to appeal is entirely statutory. State v. Berreth, 294 Kan. 98, 110, 273
P.3d 752 (2012); State v. Crozier, 225 Kan. 120, 122, 587 P.2d 331 (1978) ("[I]n the
absence of a statute which authorizes an appeal, an appeal is not available to the losing
party in the district court."). Moreover, the State's statutory authority to appeal, when
compared to a defendant's, is restricted. "While the State only has limited appeal rights, a
criminal defendant has a nearly unlimited right of review." State v. Boyd, 268 Kan. 600,
605, 999 P.2d 265 (2000); see also State v. Walker, 260 Kan. 803, 806, 926 P.2d 218(1996) (noting that appeals by the State in criminal cases are tightly restricted by statute).
The State asserts this appeal under K.S.A. 2021 Supp. 22-3602(b)(3), which
provides a statutory basis for appeal "upon a question reserved by the prosecution." Our
Supreme Court has held that "appellate courts will accept appeal of questions reserved
when the issues are 'matters of statewide interest important to the correct and uniform
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administration of the criminal law and interpretation of statutes . . . .'" State v. Skolaut,
286 Kan. 219, 225, 182 P.3d 1231 (2008). "'Questions reserved presuppose that the case
at hand has concluded but that an answer to an issue of statewide importance is necessary
for disposition of future cases.' [Citations omitted.]" Berreth, 294 Kan. at 124.
The State acknowledges this jurisdictional requirement and argues the district
court declined to apply K.S.A. 22-3219(1) over the State's objection, which allowed the
jury to hear inadmissible testimony. The State maintains that "[r]ejecting the trial court's
conclusion that it can bypass the [L]egislature's intent" by refusing to apply the statutory
standards "would allow for the uniform administration of criminal law across the State of
Kansas."
Hunter contends this court lacks jurisdiction to consider the State's appeal due to
the absence of a valid question reserved. An appellate court has a duty to question
jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the
appellate court must dismiss the appeal. State v. Delacruz, 307 Kan. 523, 529, 411 P.3d
1207 (2018); In re S.L., 62 Kan. App. 2d 1, 4, 505 P.3d 382 (2022). Jurisdiction is a
question of law over which this court exercises unlimited review. Berreth, 294 Kan. at
109.
As noted, questions reserved by the prosecution must be issues of statewide
interest important to the correct and uniform administration of the law and the
interpretation of statutes. "Questions reserved by the State in a criminal prosecution will
not be entertained merely to determine whether error has been committed by the trial
court in its rulings adverse to the State." 294 Kan. at 121. And appellate courts will not
consider cases in which resolution of the question would not provide helpful precedent.
294 Kan. 122; Skolout, 286 Kan. at 225.
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Here, the State does not clearly present a question reserved that meets these
requirements. The State first contends Officer Schmidt's testimony regarding Hunter's
mental state was neither relevant nor admissible under K.S.A. 22-3219(1) and asserts the
district court's failure to rule on the applicability of this statute was arbitrary and an error
of law. The State reasons the district court's error was prejudicial against the State
because it was not notified and so it could not be adequately prepared. And, the jury was
permitted to hear the inadmissible testimony, which was also prejudicial. The State then
takes a 30,000-foot view to maintain: "In a broader sense, whenever a trial court refuses
to apply the correct law, no party in any case can be assured a fair trial."
The State ultimately presents a mixed question to this court, at best, and an unclear
presentation, at worst. It initially argues this court "should answer the State's question
reserved and explicitly hold the mental disease or defect testimony is inadmissible
without compliance with K.S.A. 22-3219." But the State also concludes: "Requiring the
trial court to apply specific admissibility statutes is necessary for the uniform statewide
administration of criminal law." In essence, the State asks this court to both find the
testimony inadmissible and to require the trial court to apply statutes as necessary.
Resolving the latter part of the State's request is the simpler answer, because even
if resolved in its favor, such a decision would not provide useful precedent. See Berreth,
294 Kan. at 122. It is entirely unnecessary to consider this appeal to find that trial courts
are required to apply the statutes governing the admissibility of evidence. See State v.
Carapezza, 286 Kan. 992, 997, 191 P.3d 256 (2008) ("All relevant evidence is admissible
unless prohibited by statute."); K.S.A. 60-407(f). In this respect, the State is merely
asking this court to determine whether the district court erred when it refused to address
the applicability of K.S.A. 21-3219, and this court is not to entertain such an argument
under these circumstances. See Berreth, 294 Kan. at 121.
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But consideration of the State's initial, more thorny claim—that Officer Schmidt's
testimony is inadmissible without compliance with K.S.A. 21-3219—would not provide
helpful precedent, either. Fundamentally, the State is challenging whether the district
court erred in admitting Officer Schmidt's testimony. Appellate review of a trial court's
decision to admit evidence is a two-step process. First, appellate courts determine
whether the evidence is relevant. If the evidence is relevant, the court applies the
statutory provisions governing the admission and exclusion of evidence. State v. Phillips,
295 Kan. 929, 947, 287 P.3d 245 (2012).
The parties do not agree on whether, or how, the evidence was relevant during
trial. Although the State briefly discusses the relevance of Officer Schmidt's testimony, it
spends a majority of its brief challenging the adequacy of the district court's legal basis
for admitting the testimony. And, though Hunter does not candidly admit Officer
Schmidt's testimony was relevant to prove a lack of the required mental state as a result
of a mental disease or defect, he seemed to concede as much. In response to the State's
objection, defense counsel argued "it's not irrelevant, because whether or not Mr. Hunter
recognized what was in his pocket, or what he was picking up would demonstrate an
important element in the case; knowingly possessing is an element of the case."
(Emphasis added.)
Assuming for the purposes of this opinion that Officer Schmidt's testimony about
Hunter's mental state was relevant does not change the outcome of our decision here.
Surmising relevance, given Hunter's defense counsel's concession, the evidence fell
within the scope of K.S.A. 22-3219(1). To present evidence of Hunter's mental state at
trial under the plain language of the statute, Hunter was required to provide notice as set
out K.S.A. 22-3219(1). See State v. Maestas, 298 Kan. 765, 782, 316 P.3d 724 (2014). It
is undisputed that Hunter did not provide such notice.
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So, given the specific facts of this case, the district court may have erred. But this
panel cannot actually reach this inquiry, because determinative of this appeal is this:
Even if the district court did stumble, consideration of the State's question would not
provide useful precedent because both the plain language of the statute itself and prior
court decisions require the defendant to provide notice. Under K.S.A. 22-3219(1):
"Evidence of mental disease or defect excluding criminal responsibility is not
admissible upon a trial unless the defendant served upon the prosecuting attorney and
files with the court a written notice of such defendant's intention to assert the defense that
the defendant, as a result of mental disease or defect lacked the mental state required as
an element of the offense charged. Such notice must be served and filed before trial and
not more than 30 days after entry of the plea of not guilty to the information or
indictment. For good cause shown the court may permit notice at a later date."
Based on the plain language of the statute, a defendant is required to provide
notice if he or she intends to present "[e]vidence of mental disease or defect excluding
criminal responsibility . . . ." K.S.A. 22-3219(1). And, in Maestas, 298 Kan. at 782, our
Supreme Court interpreted this same statute to require compliance "whenever a defendant
seeks to prove lack of the required mental state as a result of a mental disease or defect."
The defendant in Maestas conceded the purpose of his "auditory hallucination evidence"
was to negate the mental state elements of his first-degree murder charge. 298 Kan. at
781-82. As such, the Maestas court determined this evidence fell within the scope of
K.S.A. 22-3219(1) and held the district court did not err in barring the auditory
hallucination evidence because the defendant did not provide notice as required by the
statute. 298 Kan. at 782.
The State asks this court to find Officer Schmidt's testimony was inadmissible
without Hunter's compliance with K.S.A. 22-3219(1), but Maestas has already answered
the question. Multiple decisions from our appellate courts have found when the question
has been addressed by the courts, we will not consider the same. For example, in Berreth,
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the State sought appellate review for its questions reserved because it wanted clarification
regarding a line of cases. But the Berreth court held it was "unlikely a written judicial
opinion was required on this issue" because the clarification sought by the State had been
provided in a different case. 294 Kan. at 122. The Berreth court noted panels of this court
had dismissed appeals as no longer of statewide importance because the court had already
addressed it in a prior case. 294 Kan. at 122-23. See In re E.F., 41 Kan. App. 2d 860,
861-62, 205 P.3d 787 (2009); see also State v. Sanderson, No. 104,052, 2011 WL
1377073, at *2 (Kan. App. 2011) (unpublished opinion) ("Because clear precedent has
already been established . . . we decline jurisdiction on the question reserved by the State
and, accordingly, dismiss the appeal."); State v. Hudson, No. 103,360, 2011 WL
1344730, at *3 (Kan. App. 2011) (unpublished opinion) (dismissing appeal because the
"legal authority cited by the State only serves to indicate that the question reserved by the
prosecution in this appeal has already been addressed by Kansas courts").
Because Maestas has already held K.S.A. 22-3219(1) requires defendants to
comply with the statute by providing notice for such evidence to be admissible,
determination of the State's question reserved would not provide helpful precedent. And,
considering that Maestas has already answered the State's question reserved, this court
does not entertain the State's appeal "merely to determine whether error has been
committed by the trial court in its rulings adverse to the State." Berreth, 294 Kan. at 121.
Maestas already informs the holding and finding the district court erred in admitting the
evidence would not provide helpful precedent.
Here, the State fails to present a question reserved that includes issues of statewide
interest important to the correct and uniform administration of the law and the
interpretation of statutes. Rather, it seeks this court's determination that the district court
erred. As a result, we decline to consider the State's appeal under K.S.A. 2021 Supp. 22-
3602(b)(3) and dismiss this appeal for lack of jurisdiction.
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Appeal dismissed.
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