State v. Andrews ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 113,971
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TERRILL L. ANDREWS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFERY E. GOERING and JOHN J. KISNER JR., judges.
Opinion filed March 6, 2020. Affirmed.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before MCANANY, P.J., GREEN and BUSER, JJ.
BUSER, J.: This is Terrill L. Andrews' direct appeal of his multiple convictions for
sex crimes against three young girls. Andrews presents five issues for our consideration.
We have reordered them for ease of analysis. First, Andrews contends that his statutory
and constitutional speedy trial rights were violated when his defense counsel obtained
unauthorized trial continuances. Second, Andrews asserts his statutory and constitutional
rights were violated when he did not appear in court to object to defense counsel's
unauthorized trial continuances. Third, he claims he was deprived of conflict-free defense
counsel during the litigation. Fourth, Andrews states the district court erred when it found
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a complaining witness, T.H., was unavailable to testify at the bench trial and, as a result,
admitted her preliminary hearing testimony in evidence at the trial. Fifth, Andrews argues
that the district court erroneously denied his motion for a psychological evaluation of the
complaining witness, A.C., who testified at the bench trial.
Upon our review of the parties' briefs, the extensive record on appeal, and
considering the oral arguments, we do not find any reversible error regarding the issues
presented and, therefore, we affirm the convictions.
FACTUAL BACKGROUND
In early October 2013, A.C., a 13-year old girl, and T.H., a 16-year old girl, ran
away together from a group home in Wichita. T.H. had previously met Andrews, who
was 40 years old, and from October 10, 2013, until October 12, 2013, the two girls stayed
at his residence. About October 12, 2013, A.C. left Andrews' residence and reported that
Andrews had engaged in sexual intercourse with her on three occasions while at the
residence.
A.C. made this report to Tiffany Smith, a coordinator at the Open Arms Child
Development Center in Wichita. Smith immediately contacted the Wichita Police
Department and a criminal investigation was commenced. Officer Shawn Isham
interviewed A.C. at her foster home. A.C. told Officer Isham that Andrews had raped her
"multiple times," and described the location of his residence. At trial, A.C. testified to
three separate occasions that Andrews raped her and touched her breasts.
Nurse Ruthann Farley testified at trial. Farley conducted a sexual assault medical
examination on A.C. at a local hospital, corroborated the girl's testimony, and stated that
A.C. had abrasions and lacerations indicative of blunt force trauma. Farley opined that
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these injuries appeared recent and were consistent with A.C.'s account that she had been
raped.
Upon learning of A.C.'s report, police officers visited Andrews at his residence to
determine if other runaways were at the home. Andrews informed the officers he was the
only person inside the house but he consented to a search of his residence. During the
search, officers discovered T.H. hiding in a bedroom closet. Andrews was arrested.
The State obtained a search warrant to view the contents of Andrews' cellphone.
At trial, Detective David Wertz testified that Andrews' cellphone contained a video of
both A.C. and T.H. naked in the shower. The video included a view of Andrews reflected
in the mirror and recorded his voice as he spoke to both girls. Andrews' cellphone also
contained a video of him engaging in oral sexual relations with T.H.
At the preliminary hearing, T.H. testified that she had sexual intercourse and oral
sexual relations with Andrews. She indicated that Andrews took some videos during the
oral sexual relations. During trial, the district court found T.H. unavailable as a witness
and, as a result, a transcript of her preliminary hearing testimony was read by the trial
court.
A third victim, R.M., a 14-year-old girl, was identified during the search of
Andrews' cellphone. The search revealed numerous lewd pictures of R.M. and sexually
explicit text messages between Andrews' and R.M.'s cellphone numbers. At trial, R.M.
testified that she had texted with Andrews for a few months before the sexual incidents
occurred. In their text conversations, Andrews had claimed to be a teenager. R.M.
testified that she had sexual intercourse with Andrews on three separate occasions.
Andrews was initially charged on October 16, 2013. An amended information was
later filed which charged him with three counts of rape (A.C.); three counts of aggravated
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indecent liberties with a child (A.C.); three counts of aggravated indecent liberties with a
child (R.M.); and two counts of sexual exploitation of a child (T.H.).
Following a bench trial held on February 10, 2015, Andrews was found guilty of
three counts of rape (A.C.); three counts of aggravated indecent liberties with a child
(R.M.); and two counts of sexual exploitation of a child (T.H.). The trial court acquitted
Andrews of three counts of aggravated indecent liberties with a child (A.C.). The trial
court made extensive and detailed findings of fact in support of its verdicts at the
conclusion of the bench trial.
With regards to the three counts of rape involving A.C., the trial court found it was
undisputed that A.C. was only 13 years of age at the time of the occurrences. The trial
court noted that at trial, A.C. denied that she consented to sexual intercourse and this
testimony was corroborated based on the report she made to the police. Still, the district
court observed that given her age, "it doesn't really make any difference whether she
consented to this or not." Additionally, the trial court commented that the forensic
medical exam "found injuries consistent with intercourse." In summary, the trial court
characterized the evidence of guilt as "strong."
As to the two counts of sexual exploitation of T.H., the trial court found that T.H.
was 16 years old during the relevant time periods. Two videos discovered on Andrews'
cellphone that were admitted in evidence "clearly indicate or show or depict [T.H.]
engaging in sexually explicit conduct and it is done with the intent to arouse or satisfy the
sexual desires or appeal to the prurient interest of the defendant or any other person."
Additionally, the trial court found that Andrews promoted the performance of the sex act
by videotaping it. As to both counts, the trial court found the evidence of guilt was
"overwhelming."
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With regards to the three counts of aggravated indecent liberties with R.M., the
trial court found that she was 14 years of age during the relevant time periods. The trial
court concluded that on September 25, 2013, Andrews checked R.M. out of school and
"she ended up at his house and they had sex three different times." While the trial court
noted that there was some question regarding whether the sexual encounters were
consensual or not consensual, it stated "it doesn't really matter whether the intercourse
was consensual or not. The question is did it happen. And if it happened then, because of
the age of [R.M.], it really doesn't make any difference whether it was consensual or not."
The trial judge noted that R.M. was a reluctant witness and, as a result,
commented, "I'm not totally certain why [R.M.] would be motivated to lie about any of
this stuff. And certainly the photographs on the defendant's phone, which again are
explicit photographs, corroborate [R.M.'s] testimony." Because the evidence proving
three counts of aggravated indecent liberties with R.M. was "more than sufficient," the
trial court found Andrews guilty of those three counts.
After the trial, on June 2, 2015, Andrews was sentenced under the aggravated
habitual offender statute, K.S.A. 2013 Supp. 21-6626, to a controlling term of life in
prison without parole.
PROCEDURAL BACKGROUND
Given the speedy trial right to personally appear in court, and attorney conflict
issues raised by Andrews on appeal, it is necessary to detail the procedural background of
this criminal litigation.
At all times following his arrest Andrews was in custody and awaiting trial. At the
inception of the prosecution, the district court appointed Sharon Barnett to represent
Andrews. Barnett represented Andrews at the evidentiary preliminary hearing held on
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January 9, 2014, and the arraignment the following day. Shortly thereafter, in a letter to
Barnett filed with the district court on January 27, 2014, Andrews handwrote:
"Respectfully request no further continuances be made on my [behalf] without my verbal
consent in open court." In a second letter to Barnett filed on February 3, 2014, Andrews
handwrote: "[N]o continuances or motions are to be made or filed on my behalf without
my prior verbal approval in open court."
About six months later, Andrews filed a pro se motion to dismiss Barnett as his
attorney claiming ineffective assistance of counsel, objecting to the continuation of trial
without his consent, and violation of his right to a speedy trial. A hearing on the motion
was held on July 25, 2014. At the hearing, Barnett responded:
"This case has been continued a numerous amount of times, however, I have consulted
with [Andrews] every single time. We both agreed it was my understanding it was in his
best interest to continue the case because he asked me to work on plea negotiations which
I have done with [the prosecutor.]"
The district court concluded there was no basis to appoint new counsel because,
although Andrews had no right to appear in court on continuance motions, he did have a
right for Barnett to consult with him about continuances which she had done.
Andrews promptly filed a motion to reconsider, wherein he advised he had "filed
an official complaint" against Barnett with the Office of the Disciplinary Administrator.
At a hearing on August 1, 2014, Andrews reprised his prior complaints. In response,
Barnett informed the district court, "I would disagree with most of what Mr. Andrews
says. I have visited with him a minimum of 14 times to discuss this case and how he
wanted to proceed. At no time did he ever tell me he wanted to proceed to trial. Ever."
Andrews interjected, "That's a lie."
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The district court denied the motion to reconsider, acknowledging that "it sounds
like that he's very upset and unhappy with a number of things," but not finding
"justifiable dissatisfaction" because any breakdown in communication was attributable to
Andrews.
Shortly thereafter, Andrews filed another pro se motion to dismiss Barnett which
was heard by a different judge. On this occasion, the district judge granted Andrews'
request to dismiss Barnett, but admonished him that the trial would be continued past the
September 8 trial setting to allow the substitute attorney to become familiar with the case.
Andrews responded that he understood the delay. In summary, the record indicates that
Barnett obtained trial continuances on six occasions between January 10, 2014, and
August 4, 2014.
The district court substituted Bradley Sylvester as Andrews' appointed attorney.
On October 9, 2014, Andrews handwrote a letter to Sylvester and filed a copy with the
district court that complained about Barnett's failure to abide by his objections to
continue the trial in violation of K.S.A. 2013 Supp. 22-3402(a).
On November 19, 2014, Andrews filed a pro se motion to dismiss the case due to
violations of his statutory right to a speedy trial as set forth in K.S.A. 2013 Supp. 22-
3402(a). In particular, Andrews complained that both Barnett and Sylvester had
continued his case more than eight times without his consent, and that the statutory
speedy trial time had expired. Of note, Andrews wrote that he was "relying explicately
[sic] and solely on his statutory right to speedy trial set forth by K.S.A. 22-3402 rather
than by the Sixth Amendment."
Several weeks later, Andrews filed a pro se "Motion For Immediate Removal of
Ineffective Assistant Counsel." Andrews alleged Sylvester should be removed because he
had continued the jury trial on several occasions without Andrews' presence in court and
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despite his objections. Additionally, Andrews complained that it had been about four
months since Sylvester had last met with him.
A hearing on the motion to remove Sylvester as counsel was held on January 16,
2015, before another district judge. Andrews informed the district court, "I don't think
[Sylvester is] a bad attorney. What I've heard about Mr. Sylvester is he's a very good
attorney. I just think he's very busy. I don't think he has the time to litigate my case, give
it the attention it's due." In response, Sylvester acknowledged that his caseload prevented
him from talking with Andrews, but he outlined the efforts he had made to review the
case materials and transcripts and offered his opinion that he was "not sure if there [was]
a conflict."
The district judge commented to Sylvester:
"And you can correct me if you believe this is wrong, Mr. Andrews.
"But it doesn't sound like Mr. Andrews has a—an objection to you continuing to
be his lawyer as long as you can take the time to talk to him and prepare a defense.
"Am I correct?
"THE DEFENDANT: "Yes sir."
The district judge denied the motion because "I think you're happy with Mr.
Sylvester, as long as he gives you the time needed to prepare." The district court
confirmed the trial setting for January 26, 2015, although Andrews expressed concern
that Sylvester would be able to litigate his numerous pro se motions and be prepared for
trial.
On January 26, 2015, Sylvester filed, on Andrews' behalf, a motion to dismiss the
criminal case due to speedy trial violations. The motion alleged that during the time of
Barnett's representation she had obtained trial continuances without Andrews' consent.
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The motion specifically noted that the statutory speedy trial time had run in the month
prior to the dismissal of Barnett as Andrews' attorney.
The hearing on the motion to dismiss the criminal case occurred on February 6,
2015. At the beginning of the hearing, however, Sylvester announced that Andrews had
just filed a pro se motion entitled: "Motion for Immediate Removal of Ineffective
Assistant Counsel and Appoint Standby Counsel." In relevant part, the motion stated that
Sylvester had filed a motion to dismiss the charges due to Barnett's alleged
ineffectiveness, but now Andrews asserted that Sylvester also had violated his right to a
speedy trial. The motion sought the dismissal of Sylvester as defense counsel, the right
for Andrews to represent himself, and for appointment of standby counsel.
At the hearing, Andrews made several allegations, including that Sylvester had
continued the trial on three occasions without Andrews' consent or presence in court,
which he asserted were "in the statutory rights in Kansas." Andrews also advised the
district court that he wanted a bench trial and he could litigate his own motions including
the speedy trial motion.
The prosecutor responded, "the State has been ready to go to trial, Judge."
Moreover, the prosecutor complained, "[t]his exact motion that Mr. Andrews has just
articulated to the Court has already been ruled on." The prosecutor continued:
"Judge Bribiesca heard all of these arguments. He was able to ascertain from the
defendant that he was perfectly satisfied with Mr. Sylvester as his counsel; he just wanted
him to take this case to trial. So then we got the firm trial date and here we are.
"And we are here on the Friday before trial. . . . What this reeks of, Judge, is a
delay tactic, quite frankly, because all of this has been heard before the Court. All of this
has been ruled on."
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In response to the district court's inquiry, Sylvester indicated that he visited with
Andrews in August 2014 and advised him that due to a "glut of huge trials" his trial
would be delayed. Sylvester said that he had provided Andrews with discovery materials,
corresponded with him, and had informed Andrews he would only file pro se motions if
they were legally appropriate.
Sylvester stated that when he prepared the motion for dismissal due to speedy trial
violations by Barnett, he advised Andrews that the motion would not apply to Sylvester
because he had advised Andrews at the outset of his representation of the need to
continue the case. Sylvester acknowledged that Andrews was not present in court when
he sought trial continuances. Lastly, Sylvester advised that following negotiations, the
State had offered a plea bargain with an on-grid sentence of 20 years but Andrews
rejected it.
The district judge summarized Andrews' requests: "[T]o represent yourself, to
have me appoint somebody completely blind to the case to be shadow counsel, to waive
jury trial and to proceed to bench trial on Monday." Andrews replied, "Yes. Yes, sir.
That's correct."
The district court took a recess to allow Andrews to discuss these matters with
Sylvester. At the conclusion of the recess, the district court embarked on an extensive and
detailed colloquy with Andrews, in compliance with State v. Lowe, 18 Kan. App. 2d 72,
847 P.2d 1334 (1993), to insure that he was fully informed of his rights, responsibilities,
and potential perils of self-representation.
At the conclusion of the colloquy, the district judge addressed Andrews: "Mr.
Sylvester has indicated to me after visiting with you that you wish for me to appoint him
as the shadow counsel to assist you in this matter; is that right?" Andrews replied, "Yes
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sir." The district judge admonished Andrews that if, during the proceedings, he wanted
new counsel:
"We don't really have that circumstance because Mr. Sylvester is your shadow counsel
and, you know, he'll assist you in these matters. But I do need to tell you that if at some
point in time during the trial you want me to appoint new counsel and you don't want me
to appoint Mr. Sylvester, you want me to appoint somebody else, that will not be a reason
to continue the trial or to delay the trial."
Regarding pending motions, the district judge observed, "We've got several
motions pending that Mr. Sylvester has filed on your behalf. I realize that there are
motions pending that you want to argue, which is partly a reason that's driving this
decision." The district court also cautioned Andrews that his ability to argue pretrial
motions may be inferior to Sylvester's ability.
The district court also informed Andrews that if he was convicted as charged he
would face a maximum of 11 consecutive life sentences without the possibility of parole.
Andrews responded that he was willing to take the risk of representing himself under the
circumstances. At the conclusion of the lengthy colloquy, the district court and Andrews
had the following exchange:
"THE COURT: . . . . What is your desire with respect to your wish to represent
yourself?
"THE DEFENDANT: I would like to represent myself and retain Mr. Sylvester
as my—
"THE COURT: Standby counsel?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. Well, the Court will grant your motion then. You are
now representing yourself. Mr. Sylvester will be here to assist you to the extent that you
feel like you need assistance, but you're in charge of the case. Do you understand that?
"THE DEFENDANT: Yes sir."
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The district court then summarized the outstanding motions and stated that it
would hear the testimony of any witnesses so they would not have to return to court on
Monday. Andrews advised the district court, "As far as the speedy trial motion, sir,
[Sylvester] put in a speedy trial motion. I would like my speedy trial motion." The district
court agreed to the request.
As part of Andrews' motion to dismiss due to violation of his statutory speedy trial
rights, the State called Barnett as a witness. Barnett testified that while she represented
Andrews she visited him 15 times and the trial was continued on 5 occasions. When
asked why the trial was continued on those occasions, Barnett explained:
"[BARNETT:] According to the notes in my file, Mr. Andrews wanted me to
explore plea negotiations with the District Attorney, and at that time I was dealing with
Justin Edwards. And I did begin plea negotiations on his behalf. According to my notes,
it appears that we were kind of going back and forth on those plea negotiations. I kept
Mr. Andrews aware of what the offers were and I just continued to work on plea
negotiations.
"[THE STATE:] At that time did the defendant want to go to trial?
"[BARNETT:] Not at that time, no.
"[THE STATE:] And at that time was the defendant happy or unhappy about the
continuances or something else?
"[BARNETT:] Kind of both. He didn't like the continuances and he made that
clear to me. He didn't like the continuances. But he also knew I was trying to get a plea
offer that he was happy with.
"[THE STATE:] And he understood that the reason for the continuances was so
that you could continue to negotiate with Mr. Edwards?
"[BARNETT:] Yes."
Barnett acknowledged that while she consulted Andrews about the trial continuances, she
did not obtain his permission to continue the trial or arrange for him to be present in court
when she sought continuances.
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The State then presented two law enforcement officers who testified that Andrews
had consented to their search of his residence for possible runaways. At the end of the
day, the hearing was adjourned until Monday to allow Andrews to review other motions
and offer any witnesses.
On Monday, February 9, 2015, the district court resumed the pretrial hearing to
permit Andrews to present evidence and argue his motions. Andrews called Sylvester as a
witness in support of his motion regarding speedy trial violations. Andrews commented,
"If there's an issue with him coming to the stand as standby counsel then I ask the Court
to appoint a new attorney as standby counsel." The district court suggested that Sylvester
make a proffer of his testimony which was agreeable to Andrews. As Sylvester gave a
proffer, Andrews objected that Sylvester
"did not tell me he was going to continuously continue my jury trial. . . . This is the
reason I want to put him on the stand, so I can get it in the record and ask him very
simple questions: Did he continue the jury trial and the dates and was I made aware of it,
did he come talk to me about it. It's very simple things."
The district court asked Sylvester to confine his proffer to the matters identified by
Andrews—four dates where he sought trial continuances. Sylvester expressed his concern
about testifying to conversations that were adverse to Andrews' motion to dismiss.
Sylvester explained, "[W]e had discussed the speedy trial case. Now we are adverse. I
didn't think there was any problem with continuing to represent him or doing this trial if
we did it with Sharon Barnett, and that's what I explained to him." Andrews countered
that all he was asking Sylvester about were the dates of the continuances which lead up to
the running of the statutory speedy trial deadline. For her part, the prosecutor indicated
she was uncomfortable with Sylvester as standby counsel if he provided testimony that
was adverse to Andrews' motion.
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The district judge summarized the argument:
". . . So what I hear . . . the two lawyers telling me is that if Mr. Sylvester testifies
and the testimony that he is anticipated to give Mr. Andrews is not going to agree with
then the better practice is that he would not be suitable to serve as Mr. Andrews' standby
counsel."
The district court allowed Sylvester to testify under questioning by Andrews and
indicated that "if it results in your disqualification as standby counsel, it results in your
disqualification as standby counsel." In response, Andrews stated that
"if there's a problem, your Honor, that [Sylvester] feels he is going to be in conflict then I
have no problem with asking that he be removed and new standby counsel being
appointed, but I don't think there's a problem. I think right now we're just having a
miscommunication. I think he thinks that I'm saying something I'm not. I just want to
make sure if there is a problem, before we go to the extent of saying let's remove him,
that there is a problem."
The district court recessed to allow Andrews and Sylvester to confer, whereupon
the district court was informed that Andrews desired testimony from Sylvester rather than
a proffer. The district court permitted the procedure, indicating after that it would "see the
extent to which [Sylvester] can still perform as your standby counsel at the trial."
On direct examination, Andrews established that Sylvester had sought three trial
continuances but, other than his initial meeting when he explained to Andrews generally
that the trial would need to be continued due to his schedule, he did not ask Andrews for
his approval of a specific continuance, and Andrews was never present during any of the
court hearings when the continuances were granted.
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On cross-examination, Sylvester explained that at his first meeting with Andrews
he "let him know that I was going to be on his case and it would not be going for a
while. . . . I was very busy." Sylvester testified that he "didn't perceive that [Andrews]
would object to any continuance." Sylvester testified that until the recent Friday hearing
he understood that Andrews was not concerned about Sylvester's involvement in the
speedy trial motion, and he believed that Andrews was agreeable to pursuing the speedy
trial motion only as to Barnett's representation, not Sylvester's.
Upon the completion of evidence, Andrews asked for appointment of new standby
counsel to argue his motion to dismiss the criminal case. The request was denied.
Because the district court did not consider Sylvester as standby counsel for the motion, it
permitted Andrews to argue his motion to dismiss due to a violation of his statutory right
to speedy trial. Andrews' arguments mirrored his prior arguments. In response, the State
contended that Andrews was not required to be present in court when the trial
continuances were requested. Moreover, the State argued that K.S.A. 2013 Supp. 22-
3402(g) provides that if the district court erred in attributing the trial continuances to the
State, there still was no basis to dismiss the case.
The district judge denied Andrews' motion, reasoning:
"Based on the testimony of Sharon Barnett, there was consultation with the
defendant prior to requesting these delays. [K.S.A. 2013 Supp. 22-3402(g)] doesn't say
that the defendant must consent. What the statute says is the defendant's attorney, in
consultation with the defendant. . . . [T]here was consultation . . . with Mr. Andrews prior
to requesting the continuances.
....
". . . I'll concede the point to Mr. Andrews that [with Sylvester] perhaps the
words continuance of the trial may not have been used in that consultation, but it was
clear that Mr. Sylvester did have some conversation with Mr. Andrews about the severity
of the case, the fact that it was a large case, the fact that you have to take some time to
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prepare these cases. And . . . that even though the words 'I'm going to continue this case'
might not have been said, the whole purpose of Mr. Sylvester's visit was to convey the
fact that this case was not going to go to trial in the immediate future."
The district court also found that, if Andrews was correct and the continuances were
improperly attributed to the defense, K.S.A. 2013 Supp. 22-3402(g) did not provide a
basis to dismiss the criminal charges.
Before proceeding to other motions, the district court asked Andrews if he felt
there was a conflict which prevented Sylvester from representing him as standby counsel
on the pretrial motions and trial. Andrews was ambivalent. The district court reminded
Andrews that at the end of the Friday proceeding he had told the court that he agreed to
have Sylvester as standby counsel. Andrews inquired about the possibility of appointing
new standby counsel but the district court replied there was nothing to prohibit Sylvester
from serving as standby counsel. The district court informed Andrews that he could
proceed pro se with or without Sylvester as standby counsel. Andrews replied, "If you're
not willing to give me a new standby counsel then I will keep Mr. Sylvester." Andrews
then proceeded to argue his remaining pretrial motions.
On Tuesday, February 10, 2015, the case was scheduled for a bench trial. Andrews
appeared pro se with Sylvester as standby counsel. Before presentation of evidence, the
prosecutor advised the trial court that due to the unavailability of T.H., the State sought to
admit her preliminary hearing testimony at trial. The district court's ultimate granting of
the State's motion is discussed later.
The district court asked for Andrews' response to the motion. Andrews replied:
"Your Honor, before we proceed any further, I would like to say that when I went
pro se it was as I explained to you before. I was mostly going pro se . . . for a couple
reasons. One, I had an issue as far as with my speedy trial motion that I was putting in. I
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felt that my attorney was part of that. Also, he was not willing to do some motions that I
wanted done. And, further, I felt that even though he had been my attorney of record, he
hadn't had time to actually review my case. I didn't feel that he knew my case.
". . . I am not an attorney. I am not able to defend myself properly at this time, so
I am requesting that Mr. Sylvester be reinstated as the lead on this case."
The district court asked Sylvester if he was "okay" trying the case. Sylvester was
agreeable, and the district court determined that he had been "rehired" to handle the rest
of the motions and represent Andrews at trial. Sylvester represented Andrews throughout
the trial and sentencing. Andrews appealed.
After the parties filed their appellate briefs and this matter was pending before our
court, the Kansas Supreme Court issued its opinion in State v. Wright, 305 Kan. 1176,
390 P.3d 899 (2017) (Wright I). In this opinion, our Supreme Court reaffirmed that under
K.S.A. 22-3402, a continuance hearing is a critical stage at which a defendant is entitled
to be present in the courtroom. 305 Kan. at 1178. However, because the Supreme Court
determined the trial court had made insufficient factual findings regarding whether the
lack of Wright's personal presence at continuance hearings resulted in reversible or
harmless error, the appellate case was remanded to the district court for additional factual
findings. 305 Kan. at 1180-81.
Upon our review, like Wright I, we concluded that the record on appeal contained
insufficient factual findings and conclusions of law by the district court regarding
whether the absence of Andrews in the courtroom during any trial continuance hearings
resulted in reversible or harmless error. As a result, we were unable to properly consider
this issue on appeal.
On January 2, 2018, while retaining appellate jurisdiction, we remanded this case
to the district court with directions to conduct an evidentiary hearing in order to provide
the parties with an opportunity to offer evidence regarding whether Andrews' failure to be
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personally present at continuance hearings resulted in reversible or harmless error. The
hearing was conducted on December 17, 2018. On May 17, 2019, the district court filed
an order memorializing its findings.
The district court concluded that Andrews was not present in the courtroom at any
of the 10 hearings when defense counsel requested continuances despite Andrews'
request to be present at the hearings. As a result, the district court found that "'in all ten of
those situations the defendant's right to be present was violated.'" The district court
concluded:
"However, the Court found these violations of Mr. Andrews' constitutional rights to be
harmless error. The court believed if defendant had been present and objected, the court
would still have granted the continuances. Additionally, based on the evidence, the court
held that the outcome of trial would have been the same even if the continuances had not
been granted."
At our request, the parties prepared supplemental briefs on this issue.
The appeal is now ready for our decision.
MOTION TO DISMISS FOR SPEEDY TRIAL VIOLATIONS
For his first issue on appeal, Andrews contends the district court was in error when
it denied his motion to dismiss for speedy trial violations. Andrews alleges both a
violation of K.S.A. 2013 Supp. 22-3402(a) and a Sixth Amendment violation of his
speedy trial rights because his appointed counsel, Barnett and Sylvester, obtained jury
trial continuances without his consent. On a related matter, Andrews also complains that
the district court committed statutory and constitutional error by granting his attorneys'
motions for trial continuances without his presence in court. That issue will be addressed
in the next section.
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The State has a multi-faceted response. First, the State argues that the Kansas
speedy trial statute, K.S.A. 2013 Supp. 22-3402(a), was not violated in this case. Second,
the State asserts that, assuming there was a statutory violation, pursuant to K.S.A. 2013
Supp. 22-3402(g) this error does not require reversal of Andrews' convictions. Third, the
State claims that Andrews never raised a Sixth Amendment speedy trial violation in the
district court and, as a result, this issue was not preserved for appeal. Fourth, if the Sixth
Amendment speedy trial issue was preserved, the State argues Andrews' Sixth
Amendment rights were not violated. Lastly, as discussed in the next section, the State
asserts that any violation of Andrews' statutory and Sixth Amendment right to be present
at a critical stage of the proceedings was harmless error.
We will separately analyze whether there was a statutory violation of K.S.A. 2013
Supp. 22-3402(a) and a Sixth Amendment violation of speedy trial rights.
Violation of Statutory Speedy Trial Rights (K.S.A. 2013 Supp. 22-3402[a])
The question of whether the State violated Andrews' statutory speedy trial rights
raises a question of law over which appellate courts exercise de novo review. State v.
Brownlee, 302 Kan. 491, 506, 354 P.3d 525 (2015).
Andrews alleges the district court erred in denying his motion to dismiss the
criminal case because his trial did not begin within the statutory time period after his
January 10, 2014 arraignment, as required by K.S.A. 2013 Supp. 22-3402(a). Instead, his
trial began 396 days after arraignment, on February 10, 2015. Andrews blames this
statutory speedy trial violation on both Barnett and Sylvester, who, he claims, obtained
numerous continuances "without [his] advice and consent."
In Kansas, a criminal defendant's right to a speedy trial is provided in K.S.A. 2013
Supp. 22-3402(a):
19
"If any person charged with a crime and held in jail solely by reason thereof shall
not be brought to trial within 90 days after such person's arraignment on the charge, such
person shall be entitled to be discharged from further liability to be tried for the crime
charged, unless [any] delay shall happen as a result of the application or fault of the
defendant or a continuance shall be ordered by the court."
As the language in K.S.A. 2013 Supp. 22-3402(a) provides, a defendant's statutory
speedy trial rights begin at arraignment. State v. Dupree, 304 Kan. 43, Syl. ¶ 1, 371 P.3d
862 (2016). Ordinarily, a continuance obtained by the defendant stays the statutory
speedy trial calculation. State v. Vaughn, 288 Kan. 140, 151, 200 P.3d 446 (2009).
Moreover, a defense counsel's actions—including moving for a continuance—"are
attributable to the defendant." State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002).
However, our Supreme Court has "recognized for speedy trial purposes that an attorney
cannot continue a case over a defendant's objection." Dupree, 304 Kan. at 49; see also
Vaughn, 288 Kan. at 144 (defense counsel's actions attributable to defendant "unless the
defendant timely voices" disagreement).
Returning to the case on appeal, while the evidence was controverted, it appears
that Andrews informed his trial attorneys either in writing or in person that he objected to
many of the trial continuances later sought by defense counsel. In the remand court's
order, it found that Andrews testified that "if he had been at one of these hearings, he
would have demanded a trial." Moreover, according to the remand court, "Mr. Andrews
explained, 'I would have made it quite clear that I wanted to proceed with trial.'" As a
result, we conclude the district court erred when it attributed numerous trial continuances
to the defendant based only on defense counsel's requests. Without computing the exact
number of days the district court erroneously attributed to Andrews, we are confident that
the 90-day statutory time period was violated in this instance.
Having found statutory speedy trial error, we next consider whether this error was
harmless or reversible. K.S.A. 2013 Supp. 22-3402(g) provides:
20
"If a delay is initially attributed to the defendant, but is subsequently charged to the state
for any reason, such delay shall not be considered against the state under subsections (a)
. . . and shall not be used as a ground for dismissing a case or for reversing a conviction
unless not considering such delay would result in a violation of the constitutional right to
a speedy trial or there is prosecutorial misconduct related to such delay."
Our Supreme Court construed this statutory language in Dupree and found:
"[Even if the] district court initially attributed [trial] delays to [the defendant]
and, . . . further investigation into [the defendant's] claim resulted in those delays being
charged to the State, the second sentence of K.S.A. [2013 Supp.] 22-3402(g) leaves [a
court] with no grounds to reverse [the defendant's] convictions and dismiss the case
against him." 304 Kan. at 51.
On appeal, Andrews attacks this interpretation and claims it "serves to completely
undermine and undercut the defendant's right to a speedy trial" because "[i]t allows one
provision of the [s]tatute [K.S.A. 2013 Supp. 22-3402(g)] to render another section of the
statute [K.S.A. 2013 Supp. 22-3402(a)] void." But, as provided in Brownlee:
"[T]he legislature, which created the statutory right [to a speedy trial], has decided to
eliminate the remedy for its violation in certain circumstances, providing explicitly that
the violation 'shall not be used as a ground for dismissing a case or for reversing [the
defendant's] conviction.'" 302 Kan. at 511.
In this case, there is no claim that prosecutorial misconduct resulted in the
statutory speedy trial delays. Moreover, as discussed next, we find that Andrews'
constitutional speedy trial rights were not violated. Quite simply, the two exceptions
stated in the statute are not applicable here. As a result, under K.S.A. 2013 Supp. 22-
3402(g) we conclude that under the circumstances, the statutory speedy trial error is not
reversible error.
21
Sixth Amendment Right to Speedy Trial
Whether a defendant's Sixth Amendment constitutional right to a speedy trial has
been violated is a question of law over which this court has unlimited review. State v.
White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
In Andrews' original appellate briefing, he primarily focused his Sixth
Amendment claim of constitutional speedy trial error on the lengthy period that elapsed
from his arrest until trial, and the fact that defense continuances were granted to his
attorneys without his consent. In particular, he thoroughly briefed the four constitutional
speedy trial factors enunciated in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33
L. Ed. 2d 101 (1972).
In the State's original appellate briefing it argued that we should not delve into a
Barker constitutional speedy trial analysis because Andrews did not raise this issue in the
district court. As the State correctly noted: "Defendant specified that he was relying
solely on K.S.A. [2013 Supp.] 22-3402, and was not raising a Sixth Amendment speedy
trial claim." The State points to Andrews' argument during the hearing on his motion to
dismiss that Andrews "twice expressly informed the court that he was solely raising a
statutory speedy trial claim and was not 'talking about the constitutional right' to a speedy
trial."
Andrews acknowledges the problem with the preservation of his constitutional
speedy trial claim: "While the defendant's motion [to dismiss] may not specifically
address the constitutional provision which protects the defendant's right to a speedy trial,
his motion and the objection and his reference to constitutional principles should be
construed to protect the defendant's constitutional right to a speedy trial." Andrews also
notes that during the hearing he mentioned his constitutional right to be present at
22
continuance hearings while stating "but we don't have to go to that" in emphasizing the
statutory violation.
Generally, issues not raised before the district court may not be raised on appeal.
State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Moreover, constitutional grounds
for reversal that are asserted for the first time on appeal generally are not properly before
the appellate court for review. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068
(2015).
There are, however, several exceptions to this rule, including that consideration of
the theory is necessary to serve the ends of justice or to prevent denial of fundamental
rights. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). The United States
Supreme Court has determined that the right to a speedy trial is a fundamental right.
Barker, 407 U.S. at 515 ("[T]he right to a speedy trial is 'fundamental' and is imposed by
the Due Process Clause of the Fourteenth Amendment on the States.").
Although Andrews failed to raise the Barker four-factor constitutional speedy trial
issue in the district court, he did complain of the district court's failure to consider his
objection to trial continuances sought by his defense counsel and the requirement that he
be present at trial continuance hearings. While Andrews did not clearly frame this as a
Sixth Amendment violation of his speedy trial rights, we believe it is appropriate to
address all aspects of Andrews' constitutional right to a speedy trial. We will consider
Andrews' argument that under Barker, he was denied his Sixth Amendment right to a
speedy trial.
The Sixth Amendment to the United States Constitution, applied to the states
through the Fourteenth Amendment and § 10 of the Kansas Constitution Bill of Rights,
guarantees an accused the right to a speedy trial.
23
"The United States Supreme Court set forth a balancing test for determining
whether an accused has been denied his or her constitutional right to a speedy trial in
[Barker, 407 U.S. 514]. Kansas adopted this test in State v. Otero, 210 Kan. 530, 502
P.2d 763 (1972). The following factors were set forth in Barker: (1) the length of the
delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4)
prejudice to the defendant. 407 U.S. at 530." State v. Mann, 274 Kan. 670, 701, 56 P.3d
212 (2002).
"None of these four factors, standing alone, is sufficient for finding a violation.
Instead, the court must consider them together along with any other relevant
circumstances." State v. Rivera, 277 Kan. 109, 113, 83 P.3d 169 (2004). We will consider
each factor separately.
Length of the delay
"The length of the delay between arrest and trial is key to the analysis. Until the
delay rises to the level of being presumptively prejudicial, it is not necessary to inquire
into the other Barker factors." State v. Davis, 277 Kan. 309, 334, 85 P.3d 1164 (2004).
Whether the delay between arrest and trial is presumptively prejudicial "depends on the
peculiar circumstances of each case, and the mere passage of time is not determinative."
State v. Weaver, 276 Kan. 504, Syl. ¶ 3, 78 P.3d 397 (2003).
What constitutes a presumptively prejudicial delay varies under the circumstances
of the case. See State v. Goss, 245 Kan. 189, 192-93, 777 P.2d 781 (1989) (delay of a
little more than a year was not clearly presumptively prejudicial); Davis, 277 Kan. at 336
(15-month delay not prejudicial); State v. Calderon 233 Kan. 87, 94-95, 661 P.2d 781
(1983) (13-month delay not prejudicial); State v. Fink, 217 Kan. 671, 678-80, 538 P.2d
1390 (1975) (14-month delay not prejudicial).
24
The acceptable delay for a simple or straightforward case is shorter than the
acceptable delay for a complex case. Weaver, 276 Kan. at 511. Andrews' trial began
almost 16 months after his arrest. He faced 11 felony counts relating to three victims with
a prospective sentence of life in prison without parole. See K.S.A. 2013 Supp. 21-6626.
But while the case was extremely serious, it was not particularly complex. Seven
witnesses appeared for the State during the one-day bench trial. None appeared for the
defense. We are persuaded that the 16-month delay, under the circumstances, was
presumptively prejudicial.
Reason for the delay
Under the second Barker factor, this court considers "whether the government or
the criminal defendant is more to blame for [the] delay." Doggett v. United States, 505
U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992).
Andrews concedes that "[o]stensibly, the delay stemmed from a desire on the part
of [defense] counsel to have more time to prepare the case or because of the unreasonably
high caseload of the defense attorney." As summarized in the procedural background,
Barnett testified that her purpose in obtaining trial continuances was to engage in plea
negotiations. For his part, Sylvester testified that he had a very heavy trial caseload which
required the trial to be continued.
The State correctly points out that it "did not request any trial continuances."
Moreover, the prosecutor responsible for the case testified at the remand hearing that the
State was prepared to try the case at the earliest trial setting. Lastly, there is no claim of
purposeful delay by the State. See State v. Gill, 48 Kan. App. 2d 102, 114-15, 283 P.3d
236 (2012) (finding no facts in record to support finding State delayed trial in order to
hamper defense and this factor weighed in State's favor). We are convinced this factor
weighs in favor of the State.
25
Assertion of right to speedy trial
The third Barker factor considers whether the defendant asserted his or her speedy
trial rights. 407 U.S. at 530. As the United States Supreme Court noted, "failure to assert
the right will make it difficult for a defendant to prove that he was denied a speedy trial."
407 U.S. at 532.
Andrews contends: "There is no question that the defendant [publicly],
privately[,] and repeatedly asserted his right to a speedy trial and objected to any
continuances [without] specific consultation and approval." As detailed in the procedural
background, Andrews repeatedly invoked his speedy trial rights. We find Andrews'
contention to be meritorious. This factor weighs in Andrews' favor.
Prejudice
Under the fourth Barker factor, this court must assess the prejudice, if any, that
Andrews incurred as a result of the trial delay. "Prejudice, of course, should be assessed
in the light of the interests of defendants which the speedy trial right was designed to
protect." 407 U.S. at 532. Courts consider three factors when evaluating prejudice: (1)
"oppressive pretrial incarceration"; (2) "the defendant's anxiety and concern"; and (3)
"most importantly, the impairment of his or her defense." Rivera, 277 Kan. at 118.
On appeal, Andrews complains that the 16 months he spent in jail caused "very
real prejudice arising from the stress and anxiety which would naturally result from
continued delay and a lack of knowledge of one's fate." But Andrews does not cite any
place in the record on appeal where he provided proof of these claims. We are left with
an assertion without any evidentiary support.
26
Andrews' extensive experience with the criminal justice system, however, belies
his claim that his incarceration caused undue anxiety or concern. Andrews had an A
criminal history score that included prior convictions for unlawful sexual intercourse with
a minor in 1992 and 1995, and rape and sodomy in 2003. In Rivera, the Kansas Supreme
Court found a defendant's C criminal history score demonstrated that he had experience
with the criminal justice system which limited the prejudice stemming from his
prolonged incarceration. 277 Kan. at 118-19. Our court in State v. Jackson, No. 112,845,
2016 WL 6140969, at *5 (Kan. App. 2016) (unpublished opinion), reached a similar
conclusion regarding a defendant with a B criminal history score. Andrews' extensive
criminal history similarly undermines his argument that the trial delays resulted in
prejudicial anxiety or concern.
Andrews also asserts that he was prejudiced in his ability "to defend himself as
memories fade, as does the availability of witnesses and the ability of the defense team to
have access to the scene of the alleged crime in any manner which would resemble the
scene at the time of the alleged crime." Once again, Andrews made no showing in the
district court to support these assertions. Additionally, Andrews does not identify any
defense witnesses he intended to call who were unavailable at the time of trial. Indeed,
the only witnesses at trial were State's witnesses whose memories, if fading due to the
passage of time, would seemingly not prejudice Andrews but the State. Finally, Andrews
does not explain how the crime scene, which was his residence, was unavailable to
defense counsel simply because Andrews was incarcerated. Moreover, the relevance and
importance of having access to the residence to defend against the charges is unstated.
In summary, we are persuaded that the delays in commencing the trial did not
prejudice Andrews. This factor weighs in favor of the State. Finally, applying the four
Barker factors to the totality of circumstances in this case, we are convinced the
numerous continuances of the trial did not violate Andrews' Sixth Amendment right to a
speedy trial.
27
STATUTORY AND SIXTH AMENDMENT RIGHT
TO BE PERSONALLY PRESENT AT CONTINUANCE HEARINGS
In his initial appellate brief, Andrews also claimed a violation of his statutory and
constitutional right to be present for any hearings on motions to continue the trial. In his
supplemental briefing, Andrews asserts that the violation of his right to be present at all
critical stages of the proceedings was not harmless error. For its part, the State counters
that the evidence produced at the remand hearing demonstrated that any error in granting
the trial continuances without Andrews' presence in the courtroom was harmless error.
As summarized in the procedural section, after the filing of Wright I, we remanded
this case to conduct an evidentiary hearing to determine if Andrews' failure to be
personally present at continuance hearings resulted in reversible or harmless error. After
the hearing, the district court concluded that Andrews was not present at any of the 10
hearings when defense counsel requested trial continuances despite Andrews' request to
be present at the hearings in order to object to any delays. The district court concluded
that "'in all ten of those situations the defendant's right to be present was violated.'"
Preliminarily, the State argues that
"there is strong evidence that [Andrews] acquiesced in the continuances because he
understood that they would allow Barnett to engage in plea negotiations, and would allow
Sylvester time to prepare. This indicates that [Andrews] would not [have] objected had he
been present in court when the continuances were requested by his attorneys."
Our standard of review provides that an appellate argument regarding a criminal
defendant's right to be present at a critical stage of the trial proceedings is an issue of law
over which an appellate court exercises unlimited review. Wright I, 305 Kan. at 1178.
28
Andrews had both a statutory and constitutional right to be present during the trial
continuance hearings. K.S.A. 22-3405(1) provides that "[t]he defendant in a felony case
shall be present . . . at every stage of the trial . . . except as otherwise provided by law."
K.S.A. 22-3208(7) generally provides a defendant with a statutory right to be present at a
motion hearing. Of particular relevance to this appeal, our Supreme Court has confirmed
that this statutory right applies to a hearing on a motion to continue trial. Dupree, 304
Kan. at 49-50 ("[W]e recently confirmed a defendant must have an opportunity to be
present to express disagreement with a continuance because a defendant's disagreement
matters in the statutory speedy trial analysis."); Brownlee, 302 Kan. at 508. Moreover,
our Supreme Court has found that a district court commits a statutory speedy trial error
when the defendant is not present at a hearing on a motion to continue trial in order to
voice an objection. 302 Kan. at 508.
Additionally, the Sixth Amendment guarantees that "a criminal defendant may be
present at every critical stage of his or her trial." State v. King, 297 Kan. 955, 968, 305
P.3d 641 (2013). After Wright I it is established that a criminal defendant has a statutory
and constitutional right to be present at trial continuance hearings. 305 Kan. at 1178.
At the evidentiary remand hearing, the district court found that "Andrews' right to
be present at the continuance hearings was violated by not allowing Mr. Andrews to be
present for multiple trial continuance requests." In particular, the district court found
there were 10 hearings where defense counsel requested continuances without the district
court considering Andrews' objections to any delay. The district court concluded "'either
upon the [State's] stipulation or the lack of evidence presented by the State that in all ten
of those situations the defendant's right to be present was violated.'"
We find no error in the remand court's legal conclusion that the district court erred
in not requiring Andrews' presence at the trial continuance hearings. The question then
arises: Did Andrews' failure to be personally present to object at the continuance
29
hearings result in harmless or reversible error? Stated another way, if Andrews had been
personally present in court to object to one or more trial continuances is there a
reasonable possibility that the outcome of the trial would have been affected? See Wright
I, 305 Kan. at 1179.
To answer this question, we apply a constitutional standard that
"'"error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict." State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 565 U.S. 1221.'" Wright I, 305 Kan. at 1179.
Consistent with Wright I, our court remanded the case on January 2, 2018, for an
evidentiary hearing to address
"whether the State has proven beyond a reasonable doubt that the violation of Andrews'
constitutional and/or statutory right to be personally present at one or more trial
continuance hearings did not affect the outcome of the trial in light of the entire record[,]
i.e., whether there is no reasonable possibility that the error contributed to the verdict. See
Wright, 305 Kan. at 1179; State v. Ward, 292 Kan. 541, Syl. ¶ 2, 256 P.3d 801 (2011). As
a part of this inquiry, evidence should be presented regarding whether Andrews' presence
in the courtroom during any trial continuance hearing would have made a difference in
the district court's decision to grant a trial continuance."
Upon remand, the district court held a hearing in which Andrews and the
prosecutor in charge of the criminal case, Justin Edwards, testified. Based on the court
file, testimonial evidence, and the district court's own knowledge of the trial
continuances, the court concluded that if Andrews had been personally present to object
to defense counsel's motions to continue trial, the court would still have granted the
continuances. According to the remand court, based on the entries made in the court files,
30
and the testimony of Andrews and Edwards, "this information does show the Court that
Mr. Andrews' presence would not have impacted this Court's decision to continue the
case at any of the ten hearings."
Of note, the remand judge candidly acknowledged the significance of the Dupree
opinion which was issued in 2016—and established that a defendant must have an
opportunity to be present in court to express disagreement with a trial continuance—
referring to it as "a shot over my [b]ow and the [b]ow of every jurisdiction as far as I can
tell and it changed the way we do business here." But the district judge explained its
rationale based on its understanding of Kansas law and criminal court proceedings in
Sedgwick County in 2014:
"But in 2014 I would have given extreme, great deference to the trial lawyer and
their determination as to when they were ready to try the case. I understand that a lazy
trial lawyer can take advantage of that. I certainly during this time tried to keep my eyes
open for that. I can't sit here and articulate the basis for my decision on each of these
continuances as to why I continued them. I can only tell you that my standard was good
cause shown and in each of these cases I determined that there was good cause shown by
the attorney, in both cases by Ms. Barnett, and subsequently Mr. Sylvester who had to
take over the case, start all over, to continue the case. That was based upon the severity of
the charges in this case. The extreme penalty, which you know, is arguably justified that
was passed by the legislature with regard to, quote, Jessica's Law violations, unquote."
Moreover, the remand court also referenced the heavy caseloads of appointed
defense counsel during that time period as another reason to justify granting good cause
trial continuances requested by defense counsel, over the objections of defendants:
"[B]ut I can just tell you that part of what I had to consider during this time period was
the massive caseloads that were being handled by all the lawyers and the necessity in my
belief, especially in a case where somebody could go to prison for the rest of their natural
31
life, that those lawyers be prepared and be able to focus enough on a particular case to do
their client justice when it ultimately went to trial."
On appeal, Andrews claims that the district court's finding in this regard is
"speculative at best" and "[a]t worst, the finding represents an indiscretion on the part of
the court." We disagree. There was evidence that Barnett and Sylvester sought trial
continuances in order to facilitate plea negotiations, prepare for trial, or accommodate a
busy trial schedule. Our review of the record, especially on remand, persuades us that
there was substantial competent evidence to support the district court's finding that
Andrews' personal presence in court to object to defense counsel's motions to continue
trial would have been unavailing. The trial continuances would have been granted
regardless of Andrews' in-court objections.
There is a second reason the remand court found harmless error: Based on the
evidence, the court held that "the outcome of trial would have been the same even if the
continuances had not been granted." (Emphasis added.) The district court, citing
Edwards' testimony in support, found that if Andrews "had requested a trial to proceed at
once it would have been." The district court noted Edwards' testimony that "'[i]f things
need to be done, we can move it two or three weeks and call it for trial, and that's routine
because we have enough attorneys that that's something we can do.'"
At the remand hearing, it was established that arraignment was on January 10,
2014. For statutory speedy trial requirements, this meant that—absent valid continuances
by Andrews—the 90-day speedy trial deadline for in-custody criminal defendants expired
on April 10, 2014. The first jury trial setting and first trial continuance by Barnett was on
March 3, 2014. On this date, the trial was continued until April 7, 2014, only 3 days
before the expiration of the 90-day deadline, if no continuance had been attributed to the
defense.
32
Edwards testified that if, on March 3, 2014, Andrews personally objected to his
defense counsel's motion to continue, given the 90-day time period, he would have asked
that trial be set over only two or three weeks until March 24, 2014, rather than April 7,
2014, to allow for preparation of pretrial motions. Edwards explained why he would have
asked for an earlier trial setting: "Things happen, if I got sick or a witness got sick on the
morning of [March 24, 2014] I would still have the ability to bump the case one or even
two weeks and still be within the 90 days."
On the other hand, Edwards testified that if, on April 7, 2014, the district court had
granted Andrews' personal request for a speedy trial, and 87 days of the speedy trial
period was arguably attributed to the State, "I would have said, give me a court now and
let's start picking a jury." Edwards explained that his prosecution case was as strong at
the preliminary hearing as it was at trial:
"[A]t the end of the day, I had three girls who were all caught either in photographs or
videos in naked—state of nudity, in sexual activity with the defendant. There were text
messages between the defendant and [R.M.] where they were talking about sexual things,
about meeting up and, in fact, he took her away from school one day, they went and he
photographed their sexual interactions. [T.H.] was captured on video engaging in oral sex
with the defendant. [A.C.] was in different photographs and videos naked. So at the end
of the day, this was a very strong case that if [Andrews] had come in at any time and said
I'm ready for trial, I would have been able to go to trial in very short order because of the
strength of this case."
We find substantial competent evidence in support of the remand court's finding
that if Andrews had been personally present and successfully objected to his defense
counsel's motion to continue trial on March 3, 2014, the State would have sought a trial
setting of only two or three weeks and proceeded to trial prior to the expiration of the 90-
day speedy trial deadline. See State v. Wright, 307 Kan. 449, 458, 410 P.3d 893 (2018)
(Wright II) (The most likely outcome was that had the defendant been present and
33
objected to defense counsel's continuance, it would have been charged to the State and
trial continued for a setting within the 90-day speedy trial deadline.). Moreover, we are
persuaded by Edwards' testimony that as of the date of the preliminary hearing the State
was ready, willing, and able to present its case at trial within a short period of time. As a
result, any denial of defense counsel's motions to continue would have resulted in a trial
within a matter of weeks rather than months in order to comply with any speedy trial
deadlines.
On appeal, Andrews asserts the State failed to prove that the errors did not affect
the outcome of the trial considering the entire record. Andrews argues that had he been
allowed to argue his opposition to defense counsel's motions to continue trial "it is
unlikely that the defendant would have had the same objection to his attorneys." As a
result, Andrews claims "it is unlikely that he would have sought to proceed pro se." Yet,
ultimately Andrews withdrew his request to proceed pro se and, as of the first day of trial,
he was represented by Sylvester at trial, postsentencing, and sentencing. This assertion of
reversible error lacks factual support.
Additionally, Andrews states: "In order to determine whether the verdict would be
the same, one must consider whether it is likely that the defendant would have waived his
right to trial by jury had [Andrews been given] the opportunity to be present and voice his
objection to a continuance." But Andrews does not point us to any record evidence where
he testified that he would not have waived his right to a jury trial if he had been allowed
to be present in court to state an objection to a trial continuance. Andrews testified at the
remand hearing that he had an opportunity to express this view but our reading of his
testimony indicates that he did not testify regarding this assertion. On the other hand, the
record shows that the district court thoroughly questioned and admonished Andrews at
the time he made his request to proceed pro se and, at that time, Andrews was resolute
that he wished to represent himself. Again, we find no factual support for Andrews'
argument.
34
Lastly, Andrews points out that T.H. was not available at the time of trial and, had
the trial not been continued earlier, she may have been available as a witness. According
to Andrews: "The fact is that it cannot be said with any degree of certainty, let alone with
beyond a reasonable doubt accuracy, how T.H.'s presence may have changed the outcome
of the trial." But Edwards testified that, if anything, T.H.'s absence was detrimental to the
State and benefitted Andrews.
In assessing the impact of T.H.'s unavailability at the time of trial, the remand
judge recalled "the State pointed out in their testimony the issue was not whether the sex
was consensual or not. The issue had to do with the images. And the evidence, as I
understood it, the images were there and it was simply a matter of the images existed of
both the defendant and this victim."
We can find no error in this finding. At the conclusion of the trial, the trial judge
characterized the evidence pertaining to T.H. as "overwhelming" because the videos
"clearly indicate or show or depict [T.H.] engaging in sexually explicit conduct and it is
done with the intent to arouse or satisfy the sexual desires or appeal to the prurient
interest of the defendant or any other person." Given that Andrews was charged with
sexual exploitation of T.H., the videos were the best evidence of the commission of the
crimes. Moreover, Andrews does not explain how the personal presence of one of his
victims would have benefitted him at trial. Rather, he candidly concedes the speculative
nature of his claim. All things considered, given the incriminating videos which
memorialized the sexually explicit conduct by Andrews involving T.H., we are satisfied
that the outcome of the trial would have been unaffected by T.H.'s personal presence in
the courtroom.
We conclude that on the facts of this case, the denial of Andrews' right to be
present in court when trial continuances were requested by defense counsel against his
wishes was harmless error. Had Andrews been present and objected to any of the
35
continuances requested by defense counsel, there were two possible outcomes. First, the
district court would have granted the continuances despite Andrews' objections. Second,
if the district court had not granted defense counsel a continuance because of Andrews'
objections, given the strength and state of preparation of the State's case, the State would
have been able to try the case within the initial 90-day statutory speedy trial period or any
subsequent speedy trial deadlines. In either scenario the error would have been harmless.
CONFLICT-FREE COUNSEL
Andrews next contends the district court erred by permitting the defendant to
proceed to trial and other critical proceedings without conflict-free counsel. This
allegation relates to both Barnett and Sylvester. After setting forth a brief summary of the
relevant law we will individually consider the two claims.
The Sixth Amendment to the United States Constitution provides: "In all criminal
prosecutions, the accused shall . . . have the [a]ssistance of [c]ounsel for his [defense]."
The United States Supreme Court has held this provision "requires effective assistance of
counsel at critical stages of a criminal proceeding [and] . . . [t]he constitutional guarantee
applies to pretrial critical stages that are part of the whole course of a criminal
proceeding, a proceeding in which defendants cannot be presumed to make critical
decisions without counsel's advice." Lafler v. Cooper, 566 U.S. 156, 165, 132 S. Ct.
1376, 182 L. Ed. 2d 398 (2012).
Included in this right to effective counsel is the right to conflict-free counsel. State
v. Prado, 299 Kan. 1251, 1256, 329 P.3d 473 (2014). Kansas courts have found a
defendant is entitled to conflict-free counsel not only at trial, but also at other critical
pretrial stages, such as a preliminary hearing, an arraignment, and sentencing. State v.
Bristor, 236 Kan. 313, 317, 691 P.2d 1 (1984); State v. Donaldson, No. 109,671, 2014
WL 4080074, at *4 (Kan. App. 2014) (unpublished opinion).
36
A criminal defendant does not have an absolute right to substitute counsel. State v.
Pfannenstiel, 302 Kan. 747, 759, 357 P.3d 877 (2015). Consequently, a defendant who
wishes to replace his or her existing counsel "must show justifiable dissatisfaction with
his or her appointed counsel, which can be demonstrated by showing a conflict of
interest, an irreconcilable disagreement, or a complete breakdown in communication
between counsel and the defendant." State v. Brown, 300 Kan. 565, Syl. ¶ 3, 331 P.3d
797 (2014). A motion to dismiss counsel triggers a district court's duty to determine
whether there is a conflict of interest. See 300 Kan. at 574.
When conducting a conflict of interest analysis, a district court can potentially
commit any of three errors, each one of which appellate courts review for an abuse of
discretion. See 300 Kan. at 576. The first error occurs when the district court becomes
aware of a potential conflict of interest between a defendant and his attorney but fails to
conduct an inquiry. Pfannenstiel, 302 Kan. at 761. The second error occurs when a
district court investigates a potential conflict but fails to conduct an appropriate inquiry.
302 Kan. at 761. "An appropriate inquiry requires fully investigating (1) the basis for the
defendant's dissatisfaction with counsel and (2) the facts necessary for determining if that
dissatisfaction warrants appointing new counsel, that is, if the dissatisfaction is
'justifiable.'" 302 Kan. at 761. Finally, a district court can abuse its discretion when
determining whether to substitute counsel. 302 Kan. at 762. On appeal, Andrews does not
identify the specific category of conflicts of interest error which he claims was violated in
this case.
Sharon Barnett's Legal Representation
After the district court appointed Barnett to represent Andrews, she represented
him at the evidentiary preliminary hearing held on January 9, 2014, and his arraignment
the next day. As detailed on pages 5 to 18 in the Procedural Background section,
37
thereafter, Andrews sent Barnett letters asking that she not request trial continuances
without his consent in open court.
About six months later, Andrews filed a pro se motion to dismiss Barnett as his
attorney claiming ineffective assistance of counsel, continuing the trial without his
consent, and violating his right to a speedy trial. A hearing on the motion was held on
July 25, 2014. The district court determined there was no basis to discharge Barnett
because she had consulted with him regarding trial continuances and Andrews had no
right to personally appear in court regarding those matters.
Andrews filed a motion to reconsider and informed the district court that he had
filed a complaint against Barnett with the Office of the Disciplinary Administrator.
Following a hearing on August 1, 2014, the district court denied the motion to reconsider,
concluding that any breakdown in communication was attributable to Andrews. Shortly
thereafter, Andrews filed another pro se motion to dismiss Barnett which was considered
by a different district judge. On this occasion, the motion was granted.
On appeal, Andrews contends that due to his disputes with Barnett over trial
continuances:
"[D]uring the introduction of [preliminary hearing] testimony of T.H. at trial Mr.
Andrews was, in effect, represented by counsel who had an inherent conflict of interest in
violation of the defendant's right to be conflict free counsel.
"The defendant was denied his right to the assistance of conflict free counsel at a
crucial portion of the trial, namely, the cross examination of T.H."
The State notes the chronology of events is dispositive of this claim. In particular,
Andrews filed his first motion to dismiss Barnett six months after the preliminary
hearing, complaining about trial continuances that were sought by Barnett after the
preliminary hearing. According to the State, "assuming arguendo that [Andrews] and
38
Barnett ultimately were not on the same page regarding trial continuances, that
disagreement did not arise until well after the preliminary hearing."
The State's argument is meritorious. Barnett's representation of Andrews at the
preliminary hearing occurred prior to any claimed conflict of interest over her handling of
subsequent trial continuances. Andrews provides no legal precedent in support of his
novel claim that because Barnett handled the preliminary hearing—when she did not
have a conflict with Andrews over trial continuances—the mere fact that a transcript of
T.H.'s preliminary hearing testimony was later admitted at trial means that she was
representing Andrews during trial and after her dispute with Andrews over trial
continuances.
Of course, Sylvester—not Barnett—represented Andrews at trial. The fact that a
transcript of T.H.'s preliminary hearing testimony was admitted as evidence at trial does
not create a conflict of interest with Barnett or prejudice Andrews. We find no error.
Bradley Sylvester's Legal Representation
On appeal, Andrews also contends he was deprived of his right to conflict-free
counsel during the criminal proceedings when he was represented by Sylvester either as
counsel or standby counsel. While his brief is not a model of clarity, Andrews argues that
the district court erred in its denial of Andrews' two pro se motions to dismiss Sylvester
as appointed counsel.
The State counters that no conflict of interest occurred because, although
disagreements about trial continuances and communications occurred between Andrews
and Sylvester, these disagreements "did not rise to the level of a conflict of interest."
Moreover, with regard to the second claimed conflict which occurred a few days prior to
the actual bench trial, the State observes that Sylvester in responding to the inquiries
39
made by the district court and Andrews "did not compromise any confidential
information, concede defendant's guilt, or establish that he had any interest that
materially limited his representation of defendant." Finally, the State points out that on
the day of trial, rather than proceed pro se, Andrews specifically requested the district
court to reappoint Sylvester as lead counsel to represent him at trial.
The detailed facts of Sylvester's representation and Andrews' motions to discharge
him are set forth in the Procedural Background section at pages 5 through 18. We will
consider the two pro se motions separately. The first pro se motion to dismiss Sylvester
was filed on January 7, 2015. In the motion, Andrews claimed that Sylvester had moved
to continue the trial without Andrews' consent or presence in court, and that he had failed
to discuss the case with him.
At the January 16, 2015 hearing on the motion, Andrews acknowledged
Sylvester's reputation as a "very good attorney" but complained that he was not spending
enough time preparing for trial or meeting with Andrews. In response to the district
court's questions, Sylvester mentioned he was under a great press of business but that he
had worked on the case and he was "not sure if there is a conflict." Ultimately, Andrews
agreed with the district court that he did not have an objection to Sylvester's continued
representation provided Sylvester spent more time consulting with Andrews and
preparing for trial. The district judge denied the motion saying to Andrews, "I think
you're happy with Mr. Sylvester, as long as he gives you the time needed to prepare."
Andrews agreed with the district court. The case was then set for trial 10 days later, on
January 26, 2015.
Andrews complains that during this hearing, he was required to either represent
himself or rely on Sylvester who had an inherent conflict of interest in being accused of
ineffective assistance of counsel.
40
Andrews has failed to meet his burden to show an abuse of discretion in this
instance. The district court considered Andrews' pro se motion and made appropriate
inquiries into Andrews' dissatisfaction. This initial inquiry did not require the
appointment of separate counsel for Andrews. The district court's questions posed to
Andrews and Sylvester were required and appropriate to ascertain the nature and extent
of the problem. See Pfannenstiel, 302 Kan. at 761. Importantly, Sylvester essentially
agreed with Andrews' complaints and did not argue in opposition to the pro se motion.
Under these circumstances any disagreement between Sylvester and Andrews did not rise
to the level of a conflict of interest. See State v. McGee, 280 Kan. 890, 896, 126 P.3d
1110 (2006).
We are convinced there was no apparent conflict because the district court
concluded, and Andrews agreed, that he was content with Sylvester's representation
provided the attorney spent additional time preparing for trial. We find no error in the
district court's ruling that no conflict existed.
Andrews complains of a second instance where he sought dismissal of Sylvester
due to a conflict. On January 26, 2015, Sylvester filed a motion to dismiss the criminal
case due to speedy trial violations caused solely as a result of Barnett's representation. A
hearing was scheduled on the motion only three days prior to trial. At the February 6,
2015 hearing on the motion to dismiss, however, Sylvester informed the district court that
Andrews had just filed a new pro se motion entitled, "Motion for Immediate Removal of
Ineffective Assistant Counsel and Appoint Standby Counsel." Significantly, this motion
was filed only four days prior to the commencement of trial. In this motion, Andrews
now asserted that Barnett and Sylvester had violated his rights to a speedy trial. The
motion asked the district court to allow Andrews to represent himself and to appoint
standby counsel.
41
At the hearing, Andrews complained that Sylvester had continued the trial three
times without his consent or presence in court. Andrews sought a bench trial and advised
the district court that he could argue his own pro se motions including the speedy trial
motion. In response, the prosecutor said this motion had been previously ruled on and,
referencing the prior hearing on the motion, noted that Andrews was satisfied with
Sylvester's representation provided the attorney was prepared to try the case.
Once again, the district court made inquiry into any potential conflict. For his part,
Sylvester indicated that at his initial visit, he advised Andrews that because of a "glut of
huge trials" his trial would be delayed. Although Sylvester acknowledged that Andrews
was not present in court when he sought trial continuances, he indicated that he had
provided Andrews with discovery materials and corresponded with him.
The district court summarized Andrews' requests: "[T]o represent yourself, to
have me appoint somebody completely blind to the case to be shadow counsel, to waive
jury trial and to proceed to bench trial on Monday." Andrews replied, "Yes. Yes, sir.
That's correct." Following a long and extensive colloquy with Andrews, however, the
district court confirmed the defendant now indicated that he wanted the court to appoint
Sylvester as the standby counsel for trial. The district court granted the request while
cautioning Andrews that it would not delay the trial if Andrews decided that he wanted
new counsel.
At the conclusion of the lengthy colloquy, the district court and Andrews had the
following exchange:
"THE COURT: . . . . What is your desire with respect to your wish to represent
yourself?
"THE DEFENDANT: I would like to represent myself and retain Mr. Sylvester
as my—
42
"THE COURT: Standby counsel?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. Well, the Court will grant your motion then. You are
now representing yourself. Mr. Sylvester will be here to assist you to the extent that you
feel like you need assistance, but you're in charge of the case. Do you understand that?
"THE DEFENDANT: Yes sir."
The district court proceeded to hear from Andrews on the motion to dismiss regarding
Barnett, whereupon the pretrial hearing was adjourned until Monday of the next week to
allow Andrews to review other motions and offer any witnesses.
On Monday, February 9, 2015, the district court resumed the pretrial hearing to
permit Andrews to present evidence and argue his motions. When Andrews called
Sylvester as a witness in support of his pro se motion regarding Sylvester's speedy trial
violations, Andrews insisted on testimony rather than a proffer. Andrews explained,
"This is the reason I want to put [Sylvester] on the stand, so I can get it in the record and
ask him very simple questions: Did he continue the jury trial and the dates and was I
made aware of it, did he come talk to me about it. It's very simple things."
While Sylvester and the prosecutor expressed unease as to the potential for a
conflict of interest if Sylvester, as standby counsel, testified, Andrews countered that all
he was asking Sylvester about were the dates of the continuances prior to the expiration
of the statutory speedy trial deadline. The district court allowed Andrews to question
Sylvester with the caveat that it would then determine if Sylvester could continue as
standby counsel. For his part, Andrews stated, "I don't think there's a problem."
On direct examination, Andrews established that Sylvester had sought three trial
continuances but, other than Sylvester's initial meeting when he told Andrews that the
trial would need to be continued due to his busy schedule, he did not ask Andrews to
43
approve any specific continuance, and Andrews was never present in court for the
hearings. In essence, Sylvester's testimony was a reprise of his statements to the court at
the hearing on Andrews' first motion to dismiss counsel. According to Sylvester, until the
Friday hearing, he understood that Andrews was agreeable to pursuing the speedy trial
motion only with regard to Barnett's representation, not Sylvester's.
Upon the completion of evidence, Andrews asked for appointment of new standby
counsel to argue his motion to dismiss. The request was denied. Because the district court
did not consider Sylvester as standby counsel for the pro se motion, it permitted Andrews
to argue his motion to dismiss the case due to a violation of his statutory right to speedy
trial. After argument, the district court denied Andrews' motion.
Before proceeding to other motions, the district court asked Andrews if he felt
there was a conflict to prevent Sylvester from representing him as standby counsel on the
pretrial motions and trial. Andrews was ambivalent. The district court reminded Andrews
that at the end of the Friday proceeding he had told the court that he agreed to have
Sylvester as standby counsel. Andrews inquired about the possibility of appointing new
standby counsel but the district court replied that there was nothing to prohibit Sylvester
from serving as standby counsel. The district court informed Andrews that he could
proceed pro se with or without Sylvester as standby counsel. Andrews replied, "If you're
not willing to give me a new standby counsel then I will keep Mr. Sylvester." Andrews
then proceeded to argue his remaining pretrial motions.
On Tuesday, February 10, 2015, the case was scheduled for bench trial with
Andrews appearing pro se and Sylvester as standby counsel. Andrews informed the
district court that because he was not an attorney he was "not able to defend myself
properly at this time, so I am requesting that Mr. Sylvester be reinstated as the lead on
this case." Upon inquiry, Sylvester agreed to represent Andrews. The district court
44
approved the arrangement. Sylvester represented Andrews throughout the trial, posttrial,
and sentencing.
On appeal, Andrews complains there was a conflict of interest in having Sylvester
as standby counsel when Andrews was seeking his removal from the case. Moreover,
Andrews complains that
"[o]nce trial commenced, Defendant requested that his standby counsel resume duties as
trial counsel. Accordingly, Defendant was represented at [trial] by an attorney who the
defendant had accused of providing ineffective assistance of counsel and of violating (or
at least failing to protect) his statutory and constitutional rights. As such, the defendant
was represented at trial by counsel who was hampered by a conflict of interests."
In response, the State notes that Andrews failed to cite any legal precedent in
support of the notion that a conflict requiring the dismissal of counsel existed simply
because of a dispute between Andrews and Sylvester regarding trial continuances. The
State also cites legal authority in support of its claim that just because an attorney testifies
at a hearing to dismiss counsel does not necessarily mean that a conflict of interest exists
between the defendant and the attorney.
In his brief, Andrews does not dispute that the district court conducted a proper
inquiry into Sylvester's potential conflict of interest during the February 9, 2015 hearing.
Instead, Andrews contests the court's decision to not remove Sylvester as standby counsel
in the case. Andrews proposes that calling an attorney to testify against his or her client at
a hearing for ineffective assistance of counsel—or any other motion that puts a defendant
at odds with his attorney—creates an irreparable conflict of interest which requires that
the attorney be replaced with new counsel.
To be clear, at the time Andrews filed his second motion to dismiss counsel, on
February 6, 2015, he was represented by Sylvester. At the conclusion of that hearing, and
45
at the request of Andrews, Sylvester had been relieved of his duties as counsel, and
Andrews was proceeding pro se for the rest of the pretrial motions and trial. Then—at
Andrews' request—Sylvester was appointed as standby counsel for Andrews.
We fail to find error in the district court's ruling granting Andrews' motion to
proceed pro se with Sylvester as standby counsel. Upon proper inquiry, the district court
was apprised of Andrews' complaints regarding the issue of trial continuances. The
district court denied Andrews' motion to dismiss for violation of speedy trial rights.
While the district court erred in this ruling, we have found that error to be harmless. As of
the February 6, 2015 hearing, Andrews was afforded his constitutional right to represent
himself, and his request for Sylvester to serve as standby counsel was granted by the
district court. On this record, we discern no conflict of interest and no error. The district
court ruled in Andrews' favor.
The next occasion when Andrews complains of a conflict of interest was three
days later, on February 9, 2015—the day before trial—when he insisted that Sylvester, as
standby counsel, testify under questioning by Andrews, acting in his pro se status, in
support of Andrews' pro se motion to dismiss Sylvester for speedy trial violations related
to his representation. Not surprisingly, the district court, the prosecutor, and Sylvester
raised concerns regarding this procedure, with the court ultimately concluding that it
would listen to Sylvester's testimony and determine if it created a conflict of interest. In
the end, the court determined that the nature of the testimony was not in conflict with the
legal interests of Andrews.
The district court made a full inquiry regarding the propriety of Andrews
questioning Sylvester about speedy trial issues. At the outset, Andrews wanted to conduct
his criminal defense pro se. Obviously Andrews had a Sixth Amendment constitutional
right to represent himself in this criminal litigation. See Faretta v. California, 422 U.S.
806, 819, 95 S. Ct. 2525, 45 L. Ed 2d 562 (1975). Moreover, the district court was
46
empowered to appoint standby counsel to assist Andrews in his pro se defense. McKaskle
v. Wiggins, 465 U.S. 168, 170, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). Andrews
believed he needed Sylvester's testimony to establish the factual predicates for a speedy
trial claim. Of course, there are potential perils in a pro se litigant questioning a standby
counsel regarding matters involved in that counsel's prior representation.
In Pfannenstiel, Pfannenstiel argued that a conflict of interest arose when his court
appointed attorney was questioned by the district court. Pfannenstiel argued that a new
counsel should have been appointed to avoid a conflict when he sought dismissal of his
counsel and appointment of substitute counsel. Our Supreme Court noted, however, that
Kansas and federal caselaw frequently found that questions are propounded to counsel in
order to make a full and appropriate inquiry into whether a conflict exists. The Supreme
Court noted an important distinction between an attorney truthfully recounting facts and
an attorney going beyond factual statements and advocating against the client's position.
302 Kan. at 766.
Similarly, in McGee, 280 Kan. at 894-96, our Supreme court dismissed the
defendant's claim that a conflict of interest arose at a hearing on a pro se motion for new
counsel when the defense attorney contradicted the defendant's factual assertions. At the
hearing, the defense attorney contested McGee's claim that he had "'a great lack of
concern for [my] case'" with a list of times during which the two had met to discuss the
case. 280 Kan. at 894-95. The court found this factual contradiction "did not compromise
any confidential information, concede McGee's guilt, or establish that McGee's counsel
had any interest that materially limited his representation of McGee." 280 Kan. at 896.
Instead, this factual dispute was a simple disagreement that did not "rise to the level of a
conflict of interest." 280 Kan. at 896.
Here, the questions propounded by Andrews and the answers provided by
Sylvester involved factual matters regarding the number and dates of trial continuances,
47
and whether Andrews was given the opportunity to object to Sylvester's continuances in
court. Our review of the transcript shows both Sylvester and Andrews essentially agreed
to the factual matters that Andrews was most concerned about regarding his motion.
Sylvester's responses did not disclose confidential information, concede Andrews' guilt,
or establish that Sylvester had any interest that materially limited his standby
representation of Andrews. See 280 Kan. at 896.
Pfannenstiel and McGee provide important guidance in resolving this specific
question. Under the circumstances, we are persuaded that the district court did not abuse
its discretion in permitting Andrews, who was proceeding pro se, to question his standby
counsel, Sylvester, regarding Andrews' pro se motion to dismiss.
On the first day of trial, Andrews sua sponte asked the district court to set aside its
prior order allowing Andrews to proceed pro se with Sylvester as standby counsel, and to
reinstate Sylvester as trial counsel. This waiver of Andrews' right to represent himself
must be given full and serious consideration by the district court. See State v. Vann, 280
Kan. 782, 794, 127 P.3d 307 (2006); State v. Rassel, No. 107,336, 2013 WL 1688930, at
*3 (Kan. App. 2013) (unpublished opinion) (The weight of authority seems to recognize
that a criminal defendant's decision to opt for self-representation is not irrevocable and
may be rescinded absent demonstrated bad faith or a serious disruption of the judicial
process.).
Moreover, Andrews' prior motion to dismiss Sylvester was primarily focused on
the speedy trial issue. We have considered that issue earlier and have concluded the
remand court did not err in finding the improper delays had no effect on the verdict.
Sylvester's actions in requesting trial continuances were harmless. Although the trial
continuances were a point of frustration for Andrews, nothing suggests that this issue rose
to the level of a conflict of interest at any time during the criminal proceedings.
48
In our review of the record, we find little to suggest that Andrews believed, other
than the disagreement regarding trial continuances, Sylvester was not prepared to defend
him at trial. Andrews' decision to abandon his pro se endeavor and request that Sylvester
return as trial counsel seems reasonable, and Andrews has not shown us where
Sylvester's trial representation was ineffective or inadequate.
On the morning of trial, Andrews voluntarily withdrew his request to represent
himself and asked Sylvester to represent him in the remaining criminal proceeding. On
this record, Andrews does not show any error in the district court's ruling granting his
request and reappointing Sylvester as trial counsel. The district court did not abuse its
discretion.
ADMISSIBILITY OF TRANSCRIPT OF T.H.'S TESTIMONY AT TRIAL
Andrews appeals the district court's admission of a transcript of T.H.'s testimony
at trial upon the district court's determination that T.H. was unavailable to personally
appear at trial. Although not clearly stated, it appears that Andrews is objecting to both
the district court's finding of unavailability under K.S.A. 60-459(g)(5) and raising a Sixth
Amendment constitutional confrontation claim.
Of note, Andrews candidly concedes that if the transcript was improperly
admitted, the evidence did not relate to his three convictions for aggravated indecent
liberties with R.M. As a result, this claim of error does not relate to or affect those three
convictions.
For its part, the State objects to our consideration of the statutory unavailability
issue because it was not objected to in the district court and, therefore, was not preserved
for appeal. Alternatively, the State asserts that T.H. was unavailable and that the
49
transcript of her testimony was properly admitted at trial because Andrews had the
opportunity to confront and cross-examine her at the preliminary hearing.
Sometime in August or September 2014, T.H. ran away from a group home under
the supervision of the St. Francis agency in Riley County, Kansas. The agency did not
inform the State that T.H. had run away until February 5, 2015, when the State contacted
the agency to schedule her trial testimony beginning on February 10, 2015. The State
relayed this information to the trial court and, on the day of trial, February 10, 2015, the
prosecutor moved the court to find T.H. unavailable as a witness and to admit the
transcript of her preliminary hearing testimony in evidence instead. The prosecutor
advised:
"[T.H.] testified at the preliminary hearing and was subject to cross examination by the
defendant's counsel at that time. Since that point in time, she had been placed either in a
foster home or a placement, a group home placement, in Riley County, Kansas. We were
notified by the agency that she ran from that placement, that she was reported as a
runaway by St. Francis, the agency that's responsible for her custody and care. She was
entered into the NCIC database as a runaway.
"The agency was able to provide us with some information that [T.H.] was
sighted in Wichita or had been seen in Wichita. This office requested from law
enforcement to put out an ATL to find her, that being specifically an attempt to locate,
which is essentially a way to notify the entire Wichita Police Department that if this
individual is found they are not only wanted for court but that she was a runaway. She
would have been detained. Specifically, officers were actively looking for her over the
course of this weekend in an attempt to find her here in Sedgwick County. There was
contact with the—by Detective Nagy, who is the detective responsible for runaways here
in Wichita, with the National Center for Missing and Exploited Children to see if any
other jurisdictions had had contact with her and they had not."
Sylvester responded to the State's motion by asking for clarification of how long
T.H. had been missing. The prosecutor replied that she had been missing since August or
50
September 2014. The prosecutor related that she personally knew of a Wichita officer
who told her that other officers were actively looking for T.H. over the weekend in
Wichita to no avail.
Sylvester responded that he was "not going to dispute the fact the State found out
last Thursday" but he complained that when the prosecutor and Sylvester were engaged
in plea negotiations late in that week, the State did not disclose T.H.'s unavailability.
Sylvester advised that he had explained to Andrews "how the Court can find
unavailability," but that his client might want a continuance of trial.
After consulting with Andrews, Sylvester informed the district court that Andrews
did not want a trial continuance but that he objected to the State's motion to admit the
transcript. Sylvester explained that T.H. had testified at the preliminary hearing about her
own sexual abuse and A.C.'s sexual abuse, although A.C. did not testify at the
preliminary hearing. Sylvester complained that as a result:
"I can't cross examine [T.H.] about things that in effect convict my client on another
charge in this case that's not even related to her other than it's in the same case. So that's
the problem with having her testimony just allowed in forthwith or, you know, all of it
allowed.
....
"MR. SYLVESTER: So we're objecting to that."
The district judge admitted T.H.'s preliminary hearing testimony into evidence,
reasoning:
"THE COURT: Sure. I understand. The rules of evidence allow for—well,
K.S.A. 60-460(c) allows the use of testimony of a witness given at a preliminary hearing
as an exception to the hearsay rule if that witness is unavailable. Unavailable as a witness
is defined at K.S.A. 60-459(g), specifically (g)(5): absent from the place of hearing
51
because the proponent of his or her statement does not know and with reasonable
diligence has been unable to ascertain his or her whereabouts.
"I think that the definition applies here. We have this witness being a runaway in
the first place which caused her to be placed with this group home. She has since run
from the group home. Efforts have been made to locate her. It's not as if people aren't
looking. Specific efforts have been made to locate her in Wichita as soon as the State
realized that the witness had run from the group home.
"So it seems to me that the prosecutor has made reasonable and good faith efforts
to obtain the witness' presence at trial. I appreciate the fact that had the—had Miss
Barnett known that [T.H.] would turn up missing and that her preliminary hearing
testimony was going to be the equivalent of her trial testimony, different questions might
have been asked, but the court—appellate courts have held for a long time that
preliminary hearing transcripts may be admitted at trial upon the unavailability of a
witness and that the right of cross examination initially afforded provides substantial
compliance for the purpose behind the confrontation requirement.
"So the Court at this time will find that [T.H.] is unavailable and will permit her
testimony given at preliminary hearing to be admitted pursuant to K.S.A. 60-460(c)."
We begin the analysis with our standards of review. A court's consideration of the
admissibility of evidence may require application of statutory rules controlling the
admission and exclusion of certain types of evidence. An evidentiary principle or rule,
however, is applied as a matter of law or as an exercise of the district court's discretion,
depending on the applicable rule. State v. Miller, 308 Kan. 1119, 1166, 427 P.3d 907
(2018).
An appellate court exercises de novo review of a challenge to the adequacy of the
legal basis of a district judge's decision on admission or exclusion of evidence. State v.
Brown, 307 Kan. 641, 644, 413 P.3d 783 (2018). As relevant to this case, our review of a
defendant's claim that his or her confrontation rights under the Sixth and Fourteenth
Amendments to the United States Constitution were violated is de novo without any
52
deference to the trial court's interpretation of the Constitution. State v. Stano, 284 Kan
126, 139, 159 P.3d 931 (2007).
Finally, a district court's determination that a witness is unavailable to testify will
not be disturbed on appeal absent an abuse of discretion. State v. Flournoy, 272 Kan. 784,
799, 36 P.3d 273 (2001); State v. Zamora, 263 Kan. 340, 342, 949 P.2d 621 (1997). The
party asserting the district court abused its discretion bears the burden of showing such
abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015).
Preliminarily, the State contends that Andrews may not raise the issue of T.H.'s
unavailability on appeal because "defense counsel never objected that the State had been
negligent in keeping track of T.H.'s whereabouts [or] otherwise assert that the State failed
to meet the statutory requirements for showing that T.H. was unavailable under K.S.A.
60-459(g)(5)." Importantly, Andrews does not address the State's claim that he failed to
preserve this issue for appeal in his appellant's brief or by filing a reply brief.
As reprised earlier, Sylvester did not state an objection to the unavailability of
T.H. as a witness under K.S.A. 60-459(g)(5). Rather, without specifically framing the
objection as a Sixth Amendment confrontation issue, Sylvester essentially objected to
admission of the preliminary hearing testimony because it would defeat his ability to
cross-examine T.H. at trial. We consider Sylvester's complaint at trial as a Sixth
Amendment confrontation complaint.
K.S.A. 60-404 generally precludes an appellate court from reviewing an
evidentiary challenge absent a timely and specific objection made on the record. See
State v. King, 288 Kan. 333, 341-42, 204 P.3d 585 (2009) (explaining purpose behind
contemporaneous-objection rule of K.S.A. 60-404). Moreover, a party may not object at
trial to the admission of evidence on one ground and then on appeal argue a different
53
ground. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016) (by only objecting
based on relevance at trial, defendant waived claim the evidence was unduly prejudicial).
Additionally, issues not raised before the trial court may not be raised on appeal.
See Kelly, 298 Kan. at 971. Although there are exceptions to this general rule, see
Phillips, 299 Kan. at 493, Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34)
requires an appellant to explain why an issue that was not raised below should be
considered for the first time on appeal. In State v. Williams, 298 Kan. 1075, 1085, 319
P.3d 528 (2014), our Supreme Court held that litigants who fail to comply with this rule
risk a ruling that the issue is improperly briefed, and the issue will be deemed waived or
abandoned. Shortly thereafter, in Godfrey, 301 Kan. at 1044, our Supreme Court held that
Rule 6.02(a)(5) would be strictly enforced.
Our review of the trial record persuades us that Andrews did not specifically raise
a statutory objection that the State had failed to show that T.H. was an unavailable
witness under K.S.A. 60-459(g)(5). Rather, his evidentiary objection is more
appropriately characterized as a complaint that Andrews' Sixth Amendment confrontation
rights were being violated due to Sylvester's inability to cross-examine T.H. at trial.
Moreover, on appeal, Andrews does not explain why, despite this failure to preserve the
statutory objection, we should consider it at the appellate level. We conclude that this
particular evidentiary objection was not preserved in the district court, and Andrews has
failed to claim an exception on appeal. Accordingly, Andrews' K.S.A. 60-459(g)(5)
statutory claim, made for the first time on appeal, that T.H. was not properly designated
as an unavailable witness is waived.
For the sake of completeness, however, we note that if this issue had been
preserved, there is no showing of an abuse of discretion in the district court's finding that
T.H. was an unavailable witness.
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K.S.A. 60-459(g)(5) provides that an unavailable witness is one who is "absent
from the place of hearing because the proponent of his or her statement does not know
and with diligence has been unable to ascertain his or her whereabouts." In accordance
with this statute, the State must show it acted in good faith and made a diligent effort to
find the witness and serve that witness with a subpoena or otherwise secure the witness'
attendance at trial. See State v. Plunkett, 261 Kan. 1024, 1034, 934 P.2d 113 (1997). A
district court must assess the sufficiency of the State's efforts based on all the
circumstances. See Flournoy, 272 Kan. at 800.
At trial, the facts surrounding T.H.'s unavailability were not disputed by Andrews.
As found by the district court, T.H. had run away from her placement several months
before trial. At the time she went missing from the group home, some four to five months
prior to trial, her name was entered in the National Crime Information Center database as
a runaway. Although the prosecutor's office was only notified of her runaway status five
days before trial, the State promptly worked with St. Francis to develop leads as to T.H.'s
whereabouts. Based on information that T.H. was in the Wichita area, the Wichita Police
Department communicated to their officers an "ALT" (attempt to locate) request for her
to be located and detained. Officers actively sought T.H. during the weekend before trial.
The search for T.H. also included Detective Nagy, who is the officer responsible for
runaways in Wichita, contacting the National Center for Missing and Exploited Children
to ascertain if other jurisdictions had interacted with T.H., to no avail.
Kansas law requires that the State employ reasonably diligent efforts to locate a
witness. See State v. Alderdice, 221 Kan. 684, 686-87, 561 P.2d 845 (1977); State v.
Brown, No. 113,212, 2016 WL 6910080, at *2 (Kan. App. 2016) (unpublished opinion).
"The State need not exhaust all possible means of finding witnesses," but simply to make
a good-faith and diligent effort. State v. Fields, No. 114,961, 2017 WL 3119433, at *3
(Kan. App. 2017) (unpublished opinion). All things considered in what is a fact-intensive
inquiry, we would not find the district court abused its discretion under these
55
circumstances. See Zamora, 263 Kan. at 342; State v. Vaughn, 254 Kan. 191, 201, 865
P.2d 207 (1993); State v. Bey, 217 Kan. 251, 254, 535 P.2d 881 (1975).
We next consider Andrews' objection—made in the district court and argued on
appeal—that his Sixth Amendment right to confront witnesses was violated by the
admission of a transcript of T.H.'s preliminary hearing testimony at trial.
Some factual context is necessary to analyze this issue. At the start of the
preliminary hearing on January 9, 2014, the prosecutor advised the district court and
counsel that he intended to present evidence in addition to the three rape counts against
A.C., and one count of aggravated indecent liberties against R.M. that were currently
charged in the information. In particular, the prosecutor advised that based on the
anticipated preliminary hearing testimony, he was going to ask the district court to bind
over on additional charges involving both A.C. and R.M., in addition to sexual
exploitation charges involving T.H. The prosecutor informed the district court that he had
previously advised Barnett of the anticipated additional charges. Barnett did not object to
this procedure.
T.H. testified at the preliminary hearing regarding engaging in oral sex with
Andrews while the defendant filmed the encounter on his cellphone. Additionally, she
testified about spending time with A.C. at Andrews' residence during which time she
believed that Andrews and A.C. had sexual intercourse. T.H. did not testify to any
matters involving R.M.
Barnett cross-examined T.H. on the sexual conduct involving she and Andrews, in
addition to T.H.'s knowledge of sexual activity between A.C. and Andrews. Our review
of the transcript indicates that the prosecutor did not object to any of Barnett's cross-
examination questions pertaining to A.C., and Barnett did not object that her cross-
examination regarding A.C. was limited in any way. Moreover, the district court did not
56
impose any restrictions or limitations on Barnett's cross-examination of T.H. regarding
the sexual activities that occurred between Andrews and the two young girls.
In addition to T.H., at the preliminary hearing, Detective Wertz, an investigator on
the case, testified that he had viewed video that was taken from Andrews' cellphone
showing T.H. and Andrews engaged in oral sex, and video of A.C. in the nude in a
bathtub. Finally, R.M. testified to and was cross-examined about three instances wherein
Andrews engaged in sexual intercourse with her. A.C. did not testify at the preliminary
hearing.
After the presentation of evidence, the prosecutor asked the district court to bind
Andrews over for arraignment and trial relating to the 11 felony counts for which he was
ultimately tried. Barnett objected to amending the information because there was no
testimony from A.C. regarding the sexual crimes involving her. Additionally, although
she did not object to the admission of the evidence, Barnett complained that the only
testimony regarding the crimes against A.C. came from T.H. which, in Barnett's view,
was speculative and hearsay. The district court disagreed and bound Andrews over on the
11 felony charges.
Under the Sixth Amendment to the United States Constitution, a criminal
defendant has the right to confront witnesses against him or her. If a witness is
unavailable at trial, the State may substitute testimony from that witness given in a
previous hearing, so long as the defendant had a fair opportunity to cross-examine the
witness at that proceeding. State v. Reed, 302 Kan. 227, 246, 352 P.3d 530 (2015).
"This principle is also codified in K.S.A. 2006 Supp. 60-460(c)(2)(B), which
provides for the admission of 'testimony given as a witness in . . . a preliminary hearing
or former trial in the same action' when the witness is unavailable and 'the issue is such
that the adverse party on the former occasion had the right and opportunity for cross-
57
examination with an interest and motive similar to that which the adverse party has in the
action in which the testimony is offered,' as long as it does not 'den[y] to the accused the
right to meet the witness face to face.'" Stano, 284 Kan. at 142.
Andrews complains that
"T.H.'s absence affected his right to cross-examine and possibly impeach testimony from
A.C. and T.H. herself because T.H. testified to Mr. Andrews' conduct with A.C. at the
preliminary hearing and A.C. was not present at the preliminary hearing. While Mr.
Andrews obviously had the opportunity to cross examine T.H. on her statements, he was
unable to impeach her or cross examine her based A.C.'s statements of what occurred
because A.C. did not testify at the preliminary hearing."
In essence, Andrews focuses his complaint on the claimed error of being unable to
competently cross-examine T.H. regarding Andrews' crimes against A.C., not about any
inability to cross-examine T.H. about the alleged crimes perpetrated against her.
The State counters that Andrews' counsel had the opportunity to fully cross-
examine T.H. during the preliminary hearing regarding the crimes perpetrated upon her
and A.C.
We are persuaded that Andrews has not shown a Sixth Amendment violation of
the Confrontation Clause. Andrews was represented by Barnett at the preliminary
hearing. Given that Andrews knew the three girls beforehand and was personally present
at the time they were allegedly sexually assaulted, T.H.'s testimony regarding what she
saw and heard involving Andrews sexually assaulting A.C. at his residence could not
have come as a surprise. T.H. was well known to Andrews and she was hiding in his
residence at the time of his arrest.
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Moreover, the preliminary hearing occurred three months after Andrews' arrest.
During this time, both A.C. and T.H. had been interviewed by the police and A.C. had
been medically examined regarding her injuries. The police investigation, which occurred
shortly after Andrews' arrest, resulted in the charging of three counts of rape relating to
A.C. prior to the preliminary hearing. In short, it is apparent that Andrews had access to
considerable discovery regarding the sexual assaults, including the allegations involving
A.C. at the time of the preliminary hearing. He cannot credibly claim surprise at T.H.'s
testimony regarding A.C. during the preliminary hearing.
Against this procedural background, we have reviewed Barnett's cross-
examination and T.H.'s testimony. Barnett inquired into T.H.'s knowledge regarding the
sexual assaults involving A.C. Her cross-examination was not limited in any way. During
the presentation of evidence, Barnett made no contemporaneous objections to any of the
prosecutor's questions or T.H.'s testimony. In short, Barnett was afforded the right and
opportunity for cross-examination—which she pursued—with not just a similar but an
identical defense interest and motive that Sylvester had at the time of trial. See Reed, 302
Kan. at 247 (The interest and motive of defense counsel on the prior occasion for cross-
examination of a witness need only be similar, not identical, to the interest and motive at
the later occasion.). We find no error.
Finally, assuming there was error, the district court's error was harmless because
there is no reasonable possibility the admission of T.H.'s preliminary hearing testimony
affected the district court's verdict.
When an error infringes upon a party's federal constitutional right, appellate courts
will find the error harmless only if the party benefitting from the error persuades the court
"beyond a reasonable doubt that the error complained of . . . did not affect the outcome of
the trial in light of the entire record, i.e., proves there is no reasonable possibility that the
59
error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (citing
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]).
Here, we are convinced that the district court's verdict would not have been
affected by the absence of T.H.'s preliminary hearing testimony. At trial, Detective Wertz
testified that he interviewed both A.C. and T.H. During these interviews, both girls
mentioned that Andrews had taken videos of them having sex with him. Officers
subsequently obtained a search warrant, seized Andrews' cellphone, and discovered
several video recordings of both A.C. and T.H. One video, State's Exhibit 31, showed
A.C. naked in a shower. Andrews' face was clearly visible in the mirror as he recorded
A.C. Another video showed a young girl engaging in oral sex on the person recording the
video. Detective Wertz identified the young girl from the video as T.H. and confirmed
that the video came from Andrews' cellphone. Reviewing this evidence, the district judge
found:
"So it seems to me the simple fact that this video is on Mr. Andrews' phone and
the fact that it's not controverted that it's [T.H.] engaged in that video and the fact that it's
not controverted that she's 16 years old, there's overwhelming proof of guilt on Count[s]
[10 and] 11 and the Court does find Mr. Andrews guilty [of both counts of sexual
exploitation of a child]."
We agree with the district court that the videos and trial testimony—without
considering T.H.'s preliminary hearing testimony—proved beyond a reasonable doubt
that Andrews was guilty of two counts of sexual exploitation of a child.
Finally, any erroneous admission of T.H.'s preliminary hearing testimony had no
effect on Andrews' three rape convictions relating to A.C. At trial, A.C. testified that she
had been raped by Andrews. Officer Shawn Isham testified that he interviewed A.C. at
her foster home and that A.C. told him that Andrews had raped her "multiple times."
Nurse Farley, who attended to A.C. at a local hospital, stated that A.C. had abrasions and
60
lacerations consistent with blunt force trauma. Farley noted these injuries looked recent
and were consistent with A.C.'s account that she had been raped. As already noted, the
district court saw a video with A.C. naked in the shower with Andrews in the
background.
In summary, any error by admitting T.H.'s preliminary hearing testimony to prove
that Andrews committed sex crimes against A.C. and T.H. was harmless. See Ward, 292
Kan. at 568-69. The trial evidence unrelated to T.H.'s preliminary hearing testimony was
substantial and competent proof of Andrews' guilt. Any error had no effect on the
outcome of Andrews' trial.
DENIAL OF MOTION FOR A PSYCHOLOGICAL EVALUATION OF A.C.
Finally, Andrews contends the district court erred when it denied his pro se motion
for a psychological evaluation of A.C. Specifically, Andrews argues that he presented the
district court with evidence "which would lead a reasonable person to believe that A.C.
suffered from mental instability, had potentially been traumatized both sexually and
[p]sychologically in the past and was potentially lacking in veracity."
The decision to order a psychological evaluation of a complaining witness is a
discretionary matter by the district court. State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85
(1979). Accordingly, appellate courts review the denial of a motion for a psychological
evaluation for abuse of discretion. State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352
(2010). A district court's decision constitutes an abuse of discretion if (1) no reasonable
person would take the view adopted by the court; (2) it is based on an error of law; or (3)
it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
The party asserting the abuse of discretion bears the burden of showing it. Robinson, 303
Kan. at 90.
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Kansas law provides that a district court may order a psychological evaluation of a
complaining witness in a sex-crime case only if, based on the totality of the
circumstances, it determines the defendant has shown compelling reasons to justify the
evaluation. Berriozabal, 291 Kan. at 581. This is a rigorous standard for which district
courts typically consider six nonexclusive factors: (1) whether there is corroborating
evidence of the complaining witness' version of facts; (2) whether the complaining
witness demonstrates mental instability; (3) whether the complaining witness
demonstrates a lack of veracity; (4) whether similar charges by the complaining witness
against others are proven to be false; (5) whether the defendant's motion for a
psychological evaluation of the complaining witness appears to be a fishing expedition;
and (6) whether the complaining witness provides an unusual response when questioned
about his or her understanding of what is the truth. 291 Kan. at 581.
Simply alleging mental instability is insufficient to require a district court to order
a psychological evaluation. Rather, there must be demonstrable evidence of a mental
condition that requires further investigation. 291 Kan. at 581. Occasional inconsistent
statements from the complaining witness are not enough for a court to order a mental
evaluation. 291 Kan. at 581.
Prior to trial, Andrews filed a pro se motion requesting a psychological evaluation
of A.C. In the motion, Andrews argued that A.C. had "a history of mental illness [based
on] her statement 'I cut myself' and . . . areas of cutting marks on thighs; lower arms;
abdominal and back." Andrews also noted A.C. had "been in foster care since age 6 due
to abuse by biological mother . . . had a history of sexual abuse with biological father . . .
[and] had an unstable behavioral history."
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The district court denied Andrews' motion, reasoning:
"There is no evidence . . . of the victim's—demonstrable lack of veracity. There's been no
evidence that the victim has testified falsely or given false information in connection with
things maybe even separate and apart from allegations of sexual misconduct. There's just
nothing in the record that would suggest that the victim has a problem with veracity.
There's nothing in the record that would suggest that the victim doesn't understand the
difference between the truth and a lie."
On appeal, Andrews argues a confluence of facts "suggest a heightened possibility
of mental instability that warranted an evaluation of A.C. prior to trial." He notes, "A.C.
was a frequent run away from foster care" and "had been in foster care since she was six
years old"; that "A.C. identified . . . [T.H.] as her sister despite the fact" that the two
"were not related"; and that "A.C. was [d]iagnosed as suffering from . . . Attention Deficit
Hyperactivity Disorder" (ADHD) and "medicated with Trazodone for a sleeping
disorder." He also claims that A.C. "believed that her mother did not care about her and
that she had had multiple sex partners despite her tender age of 13 years old."
Preliminarily, the State objects to Andrews' factual assertions made on appeal that
were not made when the motion was argued and ruled on by the district court. For the
first time on appeal Andrews asserts that A.C. was on medication for ADHD and a
sleeping disorder. He further asserts that A.C. showed mental instability when she
inaccurately referred to T.H. as her sister. We agree that these factual assertions were
never presented to the district when it considered the motion and, as a result, Andrews
has not designated a record sufficient to present these points to our appellate court. See
Miller, 308 Kan. at 1157.
For legal support, Andrews cites State v. Bourassa, 28 Kan. App. 2d 161, 15 P.3d
835 (1999). In that case, Bourassa presented evidence that the 11-year-old victim was
taking Prozac, had been under psychological care for behavioral disorders, accused her
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father of sexually molesting her, tended to soil herself, and reportedly mutilated two
kittens. The victim's sister—who was present when the claimed abuse took place—
testified nothing inappropriate occurred. Based on these facts, our court found the district
court erred when it refused to compel a psychological evaluation of the complaining
witness. 28 Kan. App. 2d at 166.
Bourassa provides little support for Andrews' claims. Moreover, Bourassa stands
as an outlier in the constellation of psychological evaluation cases, and it is frequently
distinguished by Kansas appellate courts. See State v. McCune, 299 Kan. 1216, 1232, 330
P.3d 1107 (2014); State v. Staples, No. 114,717, 2016 WL 7430426, at *4-5 (Kan. App.
2016) (unpublished opinion).
Staples provides helpful guidance in that its facts are unlike Bourassa but similar
to the case on appeal. In Staples, the defendant argued the district court erred when it
denied a psychological evaluation of the complaining witness because the witness saw a
therapist, had ADHD, and an anger disorder for which she took medication. Our court
upheld the district court's ruling and found the victim's ADHD and anger disorders, by
themselves, were insufficient to show that the victim lacked mental stability. 2016 WL
7430426, at *4-5.
Like Staples, other than the fact that A.C. may have had ADHD and an anger
disorder, Andrews provided insufficient proof of an underlying mental disorder. Standing
alone, these diagnoses are not enough to warrant a psychological examination. See, e.g.,
State v. Coggs, No. 104,934, 2012 WL 5364658, at *3 (Kan. App. 2012) (unpublished
opinion) (finding that bipolar diagnosis, on its own, did not show a lack of mental
stability).
Andrews also emphasizes A.C.'s characterization of T.H. as her "sister," when the
two girls were not related. Although not preserved on appeal, we think it is more
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probable that A.C. used this description as a term of endearment, rather than as a
manifestation of some dishonest claim that T.H. was her biological kin.
Based on our review of the six factors applicable to an analysis of this issue, we
are convinced that Andrews has not shown an abuse of discretion by the district court.
See Berriozabal, 291 Kan. at 581. In particular, there was corroborating evidence of
A.C.'s version of events; there was no proof of her lack of veracity; there was no claim
that A.C. had ever made a false allegation of sexual assault; A.C. never provided an
unusual response that indicated she was unaware of what is the truth; and given the lack
of a substantial factual basis supporting Andrews' motion, the request for an evaluation
appeared to be a fishing expedition.
On this record, we are convinced that the district court did not abuse its discretion
when it denied Andrews' motion for a psychological evaluation of A.C.
Affirmed.
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