State v. Mulleneaux

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,503
STATE OF KANSAS,
Appellant,
v.
MICHAEL GLEN MULLENEAUX II,
Appellee.
SYLLABUS BY THE COURT
1.
A county or district attorney is the representative of the State in criminal
prosecutions and has broad discretion in controlling those prosecutions. But a
prosecutor's discretion is not limitless, and the doctrine of separation of powers does not
prevent court intervention in appropriate circumstances.
2.
In determining if dismissal of a criminal charge with prejudice is appropriate,
appellate courts apply an abuse of discretion standard. A district court abuses its
discretion by (1) adopting a ruling no reasonable person would make, (2) making a legal
error or reaching a legal conclusion not supported by factual findings, or (3) reaching a
factual finding not supported by substantial competent evidence.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 13, 2021.
Appeal from Geary District Court; COURTNEY D. BOEHM, judge. Opinion filed July 8, 2022. Judgment of
the Court of Appeals reversing the district court is reversed. Judgment of the district court dismissing the
charges with prejudice is affirmed.
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Tony R. Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general,
was with him on the brief for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: In criminal cases, the Kansas Legislature has provided limited and
specific paths for the State to appeal. Here, at different points in the proceeding, two
alternative paths became available to the State. The first path arose because the district
court judge suppressed evidence as a discovery sanction; the State could have taken an
interlocutory appeal of that decision. But it made the strategic decision to instead ask the
judge to dismiss the case without prejudice. In doing so, the State told the judge that
without the suppressed evidence it could not proceed to trial. The judge then dismissed
with prejudice. The State now appeals from the dismissal with prejudice.
On appeal, the Court of Appeals considered the issue to be whether the judge erred
by imposing dismissal with prejudice as a sanction for a discovery violation. Finding
error, the Court of Appeals reversed and remanded the case. State v. Mulleneaux, No.
121,503, 2021 WL 3573777 (Kan. App. 2021) (unpublished opinion).
We hold, however, the district court's sanction for the discovery violation was to
suppress evidence and continue with the trial as scheduled. The State chose not to appeal
those decisions. Instead, the prosecutor informed the district court that the State could not
proceed to trial without the suppressed evidence and asked the court to make a finding of
necessity so it could gain a speedy trial advantage upon filing a new case against Michael
Glen Mulleneaux II, a case unburdened by a suppression ruling. Under those
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circumstances, we hold the district court did not abuse its discretion in dismissing the
case with prejudice. We thus reverse the Court of Appeals and affirm the district court.
FACTS AND PROCEDURAL BACKGROUND
A law enforcement officer stopped Mulleneaux for a traffic violation. During the
stop, the officer learned Mulleneaux was driving on a suspended license and arrested
him. The officer performed a search incident to arrest and found a pipe with suspected
drug residue. This led to the State charging Mulleneaux with one count of possession of
marijuana and one misdemeanor count of possession of drug paraphernalia. See K.S.A.
2017 Supp. 21-5706(b)(3) (possession of marijuana); K.S.A. 2017 Supp. 21-5709(b)(2)
(possession of drug paraphernalia). The State alleged Mulleneaux had two prior
convictions for possession of marijuana, which made the possession of marijuana a
felony. See K.S.A. 2017 Supp. 21-5706(c)(3)(C).
Soon after the State filed charges against Mulleneaux, his attorney requested
discovery and inspection under K.S.A. 2021 Supp. 22-3212 and K.S.A. 2021 Supp.
22-3213. She did so by signing a form discovery agreement provided by the Geary
County Attorney's Office. The agreement states the County Attorney's Office will
provide discovery within 20 days after arraignment. Fax records reflect the Geary County
Attorney's Office received the discovery agreement. Despite Mulleneaux's request,
discovery became an issue twice during pretrial proceedings.
The first dispute related to two documents presented by the State at Mulleneaux's
preliminary hearing—a journal entry of conviction and a journal entry of motion to
revoke probation. This dispute is not at issue on appeal but provides context for
Mulleneaux's arguments and the judge's ruling. After the preliminary hearing,
Mulleneaux moved to dismiss the felony charge of possession of marijuana, arguing
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neither journal entry proved the necessary prior convictions. During a hearing on the
motion, Mulleneaux's counsel asked the district court judge to "order the State to provide
me with copies of those two documents [the journal entries], as I haven't received the
discovery." The judge granted Mulleneaux's motion and remanded the case for a second
preliminary hearing.
The second discovery dispute leads to this appeal. It relates to a Kansas Bureau of
Investigation (KBI) report analyzing whether officers seized marijuana residue during
Mulleneaux's arrest. This district magistrate judge admitted the report into evidence in the
two preliminary hearings conducted in district court. At both hearings, the arresting
officer testified about the traffic stop and subsequent arrest of Mulleneaux. The officer
also explained she sent a pipe found during the search incident to Mulleneaux's arrest to
the KBI for testing. She received a lab report documenting that a chemist had detected
THC. On cross-examination at the second preliminary hearing, the officer confirmed the
only evidence of marijuana found on Mulleneaux was the residue in the pipe. The State
did not provide a copy of the lab report to the defense at the hearing.
As the time for the trial approached, the State still had not provided a copy of the
lab report to Mulleneaux's attorney. This led to Mulleneaux's attorney moving to exclude
the KBI lab report and the KBI chemist's testimony from evidence at trial. The district
court judge heard arguments on the motion the first morning of the trial; the judge was
the same judge who had heard the motion to dismiss and who was thus aware of the first
discovery dispute.
Mulleneaux's attorney first explained why she filed the motion. She detailed the
steps she had taken to get the report, including completing and faxing the County
Attorney's form discovery agreement. But the State had not provided the report, a fact she
realized when preparing for trial. She decided to review the County Attorney's file under
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its open file policy because of her experience with trying to get a copy of the journal
entry the State had relied on at the preliminary hearing. She recounted that when she
asked for a copy she was told the County Attorney's Office did not physically have one.
But when she inspected the County Attorney's file on Thursday before trial, she found a
copy of the journal entry she had been seeking. She did not find the KBI report, however.
The next day she filed the motion in limine, asking to suppress the KBI report and the
chemist's testimony. While the State sent her a copy over the weekend before trial, she
contended the late production did not cure the discovery failure because she had needed
the report so she could contact and interview the chemist.
The State argued against excluding the evidence because defense counsel had a
chance to review the report at both preliminary hearings and had never moved to compel
production of the report. The State had no record of the discovery request Mulleneaux
faxed to its office, so it argued K.S.A. 2021 Supp. 22-3212 and its pretrial discovery
requirements did not apply. The State argued instead K.S.A. 2021 Supp. 22-3213 applied,
which did not require disclosure of any report until after the witness testified. The State
also noted defense counsel discovered the report was missing from the State's file on the
Thursday before trial but did not notify the State before filing a motion in limine at 5 p.m.
on the Friday before the scheduled trial start on Monday. The State said it located and
sent a copy of the report to counsel over the weekend. It suggested the more appropriate
remedy on these facts would be a continuance.
The district court judge took a brief recess to consider the parties' sanction
arguments and review documents. The judge then ruled from the bench and suppressed
the evidence:
"There's an obligation for the State to comply with statute[. T]he request for
discovery and inspection, which is admitted as Defense Exhibit A, was faxed on June
25th, 2018. The request was made. Statute and the request should have been followed and
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complied with. They were not. So the sanction is that the State is not allowed to use the
KBI lab report or testimony by the KBI lab tech. Court will grant defendant's second
motion in limine."
The prosecutor immediately announced: "With that ruling, Judge, the State's
going to dismiss without prejudice." The State asked the judge to make "the specific
finding that it's being dismissed out of necessity because we can't use the KBI chemist's
testimony."
Mulleneaux's counsel responded that if the court were to dismiss the case the
dismissal should be with prejudice because the State sought to achieve a tactical
advantage through the dismissal by circumventing the judge's suppression order through
a new action. The State responded: "[W]e're not dismissing this because of a tactical
advantage. We're dismissing this because of their motion. And we cannot proceed to trial
because of their motion and their request and sanction. So, out of necessity, we cannot
proceed."
The district court dismissed the charges with prejudice.
The State appealed to the Court of Appeals, revealing in its notice of appeal that it
was appealing from "the district court's dismissal with prejudice." The State identified
K.S.A. 2021 Supp. 22-3602(b)(1) as the statutory authority for its appeal; that statute
allows a prosecutor to appeal in a criminal case from an order of dismissal.
The Court of Appeals reversed. It concluded the district court abused its discretion
by dismissing with prejudice for a discovery failure. See Mulleneaux, 2021 WL 3573777,
at *3. Judge Atcheson dissented based on "the exceptionally deferential standard of
review we are to apply." 2021 WL 3573777, at *4 (Atcheson, J., dissenting).
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Mulleneaux petitioned for review. This court granted review and obtained
jurisdiction under K.S.A. 20-3018(b) (petitions for review of Court of Appeals decisions)
and K.S.A. 60-2101(b) (jurisdiction to review Court of Appeals decisions upon petition
for review).
ANALYSIS
In the State's brief before the Court of Appeals, it raised two issues in which it
argued the district court erred in (1) granting Mulleneaux's motion in limine and
(2) dismissing the case with prejudice. Mulleneaux responded to the first issue by arguing
the State failed to take the necessary procedural steps to present the suppression order for
appellate review. He contended the State did not mention the decision to grant the motion
in limine in its notice of appeal. He pointed out that the State cited K.S.A. 2021 Supp.
22-3602 as the only statutory authority for the appeal and that provision did not mention
evidentiary or suppression rulings. The Court of Appeals did not directly address this
argument, which Mulleneaux raises again in his petition for review. As to the State's
second issue about whether the district court judge erred in dismissing the case with
prejudice, he argues the Court of Appeals panel mischaracterized the district court judge's
ruling as a discovery sanction, which led to it applying the wrong legal analysis.
We consider the two issues in turn.
1. Merits of the motion in limine are not at issue.
Mulleneaux cites State v. Barlow, 303 Kan. 804, 811, 368 P.3d 331 (2016), and in
the Court of Appeals he also cited State v. Berreth, 294 Kan. 98, 273 P.3d 752 (2012), as
support for his argument that the order granting Mulleneaux's motion in limine and
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limiting the use of certain evidence is beyond the scope of appellate review as defined in
K.S.A. 2021 Supp. 22-3602(b).
Mulleneaux makes a valid point that the right to appeal is defined by statute. See
State v. Young, 313 Kan. 724, 728, 490 P.3d 1183 (2021). Our Legislature has chosen to
restrict the State's right to appeal to specified circumstances. See State v. Myers, 314 Kan.
360, 365, 499 P.3d 1111 (2021); State v. Ramirez, 175 Kan. 301, 309, 263 P.2d 239(1953). We must interpret those statutes, which presents a question of law to determine
the scope of the right. Young, 313 Kan. at 728. Here, the State has cited only one statute
and only one subsection from that statute, K.S.A. 2021 Supp. 22-3602(b)(1), which
provides:
"(b) Appeals to the court of appeals may be taken by the prosecution from cases
before a district judge, or a district magistrate judge who is regularly admitted to practice
law in Kansas, as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment."
As Mulleneaux points out, this statutory provision does not mention rulings about
discovery disputes or the suppression of evidence, such as the judge's order excluding
the KBI report and the KBI chemist's testimony. Mulleneaux suggests the State's right to
appeal a decision of that type falls under K.S.A. 2021 Supp. 22-3603, which explicitly
authorizes an interlocutory appeal when a district court suppresses evidence.
We need not belabor the finer points of this issue. Compare Berreth, 294 Kan. at
112-13 with 294 Kan. at 127-30 (Luckert, J., dissenting); see also State v. Huff, 278 Kan.
214, 217-19, 92 P.3d 604 (2004). The State waived any arguments by not briefing them
and by conceding at oral argument before us that the merits of the in limine ruling are
not before us. See State v. Bailey, 313 Kan. 895, 897, 491 P.3d 1256 (2021) (party
abandons issue by failing to adequately brief it). As a result, we accept for purposes of
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this appeal the district court judge's ruling that a discovery violation occurred and that an
order suppressing evidence was an appropriate sanction.
2. Dismissal with prejudice is affirmed.
The sole issue is thus whether under those circumstances the district court judge
erred by dismissing the case with prejudice rather than granting the State's motion to
dismiss without prejudice.
The context of that ruling is critical to the analysis. Dismissal arose only after the
judge announced her ruling limiting the State's use of the evidence. In making that
ruling, the judge implicitly rejected the State's repeated contention that a continuance
would cure any prejudice to Mulleneaux.
The prosecutor immediately advised the court "the State's going to dismiss without
prejudice." The court asked Mulleneaux's counsel for her position. She argued the State
was dismissing for the tactical advantage of avoiding the sanction the court had
imposed. She asked that, if the court ordered dismissal, the court either dismiss with
prejudice or impose a condition on refiling that the State would use a summons rather
than an arrest. The district court judge ordered dismissal with prejudice.
In reviewing the order dismissing with prejudice, "[w]e recognize that a county
attorney or district attorney is the representative of the State in criminal prosecutions;
and he or she has broad discretion in controlling those prosecutions." Comprehensive
Health of Planned Parenthood v. Kline, 287 Kan. 372, 408, 197 P.3d 370 (2008). We
also acknowledge that a judge's decision to dismiss criminal charges can improperly
infringe on a prosecutor's discretion. See State v. Williamson, 253 Kan. 163, 165-66, 853
P.2d 56 (1993) (district court erred by dismissing criminal charges against defendant on
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ground that matter was better handled by civil commitment for care and treatment;
dismissal amounted to impermissible judicial intrusion into prosecutor's function). And a
court usually cannot interfere with the prosecutor's discretion to dismiss charges. See
Foley v. Ham, 102 Kan. 66, 70, 169 P. 183 (1917) ("The power effectively to control a
prosecution involves the power to determine when and before what tribunal it shall be
brought and maintained, and therefore whether it should be discontinued.").
"Nevertheless, a prosecutor's discretion is not limitless; and the doctrine of
separation of powers does not prevent court intervention in appropriate circumstances."
Kline, 287 Kan. at 408. Dismissal with prejudice may thus be appropriate if the interests
of justice so demand. State v. Bolen, 270 Kan. 337, 342-43, 13 P.3d 1270 (2000). In
determining if dismissal of a criminal charge with prejudice is appropriate, appellate
courts apply an abuse of discretion standard. 270 Kan. at 343. A district court abuses its
discretion by "(1) adopting a ruling no reasonable person would make, (2) making a
legal error or reaching a legal conclusion not supported by factual findings, or (3)
reaching a factual finding not supported by substantial competent evidence." State v.
Alfaro-Valleda, 314 Kan. 526, 533-34, 502 P.3d 66 (2022).
In part, the Court of Appeals concluded the district court abused its discretion by
making the legal error of not applying the factors this court has adopted for situations
when a court sanctions a prosecutor. See Bolen, 270 Kan. at 343. In Bolen, we cautioned
that the power to dismiss a criminal complaint "should be exercised with great caution
and only in cases where no other remedy would protect against abuse. Dismissal with
prejudice should be used only in extreme circumstances. [Citations omitted.]" 270 Kan.
at 343. We set out factors a judge should consider, saying: "Where there has been no
showing that the defendant suffered actual prejudice as a result of a prosecutor's
misconduct, and alternative means of sanctioning the prosecutor exist for the violation,
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dismissal of pending charges with prejudice may constitute an abuse of discretion by the
trial court." 270 Kan. at 343.
Noting that caselaw, the Court of Appeals ruled the district court abused its
discretion by not weighing those factors. Mulleneaux, 2021 WL 357377, at *3 ("[W]e
necessarily conclude the district court stepped outside the governing legal precepts to
dismiss the charges against Mulleneaux with prejudice."). They did so through the lens of
the dismissal with prejudice being a sanction against the State for failing to provide the
KBI report as part of discovery. As Mulleneaux notes, the panel wrote that "[t]he district
court revised its oral ruling and dismissed the case with prejudice, effectively barring any
further prosecution of Mulleneaux on the charges." (Emphasis added.) 2021 WL
3573777, at *2. The panel accordingly began its legal analysis by recognizing a district
court's broad discretion to remedy discovery violations. But it noted that discretion had
limitations, especially when imposing the "uniquely harsh sanction" of dismissal of a
criminal case with prejudice. 2021 WL 3573777, at *2. The panel quoted Bolen, 270
Kan. at 342-43, for support and applied the factors Bolen set out for situations when a
court orders dismissal as a sanction for the State's abuse of process. 2021 WL 3573777, at
*2-3.
As Mulleneaux argues, the panel's analysis thus firmly sits in the analytical box of
a dismissal as a sanction against the State. He argues that is not the analytical box
applicable to these facts, however. We agree.
In sanctioning the discovery violation, the district court granted the motion in
limine and restricted the State's use of the KBI lab report and the KBI chemist's
testimony. It also implicitly rejected the State's repeated suggestion a continuance would
be a better option. Before the State raised the prospect of a dismissal, there is nothing to
suggest the judge would have dismissed the case, much less dismissed it with prejudice.
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And, while Mulleneaux argued any dismissal should be with prejudice, he did not
counter the State's motion with a formal motion of his own. Nor does there appear to be
any statutory authority that would have supported a defense motion to dismiss at that
stage of the proceeding. Cf. K.S.A. 2021 Supp. 22-3208(4) ("The motion to dismiss
shall be made at any time prior to arraignment or within 21 days after the plea is
entered."). Dismissal arose only because the State announced it was dismissing the case.
After seeking a ruling that dismissal was a necessity, the State denied it was trying
to seek a tactical advantage. While the judge did not make specific findings about the
prosecutor's intent, the dialogue between the attorneys and the judge reveals that it was
everyone's expectation that the State would refile charges against Mulleneaux in a case
that would be unburdened by the judge's sanction. The State revealed this intent by
asking for a finding of necessity, a ruling important only to the computation of speedy
trial dates in a newly filed case. See K.S.A. 2017 Supp. 22-3402; State v. Smallwood,
264 Kan. 69, 75, 955 P.2d 1209 (1998) ("[A]bsent a showing of necessity, the State
cannot dismiss a criminal action and then refile the identical charges against a defendant
to avoid the time limitations mandated by statute."). This was thus not a case of the
prosecutor deciding to drop a prosecution, a decision left to the prosecutor's discretion.
See Ham, 102 Kan. at 67-70.
Rather, the State tried to circumvent a ruling with which it disagreed instead of
challenging the order through an interlocutory appeal. That attempt to avoid the judge's
ruling created an abuse of process, which the district court had discretion to prevent. See
Kline, 287 Kan. at 408. The question then becomes if dismissal with prejudice was
appropriate.
In many similar cases, dismissing with prejudice would be inappropriate because it
is a uniquely harsh sanction a judge should order only after considering other options.
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See Bolen, 270 Kan. at 342-43. One option would have been to deny the State's request
to dismiss without prejudice and to reiterate the previously implied decision to not
continue the trial setting. The prosecutor would still have been in control of the case and
could have proceeded to trial. As Mulleneaux argues, the State has in other cases proven
guilt in a drug possession case on circumstantial evidence. State v. Northrup, 16 Kan.
App. 2d 443, 455-56, 825 P.2d 174 (1992); see also State v. Brazzle, 311 Kan. 754, 769-
71, 466 P.3d 1195 (2020) (concluding State presented sufficient evidence defendant
possessed oxycodone based on officer's testimony he compared pills found in
defendant's car to the appearance of the pill on drugs.com, citing Northrup). By not
simply denying dismissal without prejudice, the judge infringed on the prosecutor's
discretion by not leaving to the prosecutor the decision of whether to proceed with trial.
The error of skipping that procedural step does not automatically lead us to reverse
the district court, however, because we hold that error was harmless under the
circumstances of this case. The key fact here is the prosecutor's admission to the judge
that it could not proceed to trial without the suppressed evidence. In other words, the
prosecutor conceded he lacked the evidence necessary to prove the case to the jury. The
State acknowledged this again before us, saying it could not prove its case without the
KBI report because that report was the sole evidence establishing the pipe in
Mulleneaux's possession contained marijuana residue. The State thus could not in good
faith have proceeded with the prosecution without the excluded report. See Kansas Rule
of Professional Conduct 3.8(a) (2022 Kan. S. Ct. R. at 401) (special responsibilities of a
prosecutor). We therefore find harmless any error in not simply denying a dismissal
without prejudice. See K.S.A. 60-2105; K.S.A. 2021 Supp. 60-261.
Judgment of the Court of Appeals reversing the district court is reversed.
Judgment of the district court dismissing the charges with prejudice is affirmed.
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