Opinion
No. 106,479.
2013-01-18
STATE of Kansas, Appellee, v. Randolph J. HOLDER, Appellant.
Appeal from Douglas District Court; Sally D. Pokorny, Judge. Michael J. Bartee, of Michael J. Bailee, P.A., of Olathe, for appellant. Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Sally D. Pokorny, Judge.
Michael J. Bartee, of Michael J. Bailee, P.A., of Olathe, for appellant. Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randolph J. Holder appeals following his conviction of felony driving under the influence of alcohol (DUI), claiming that his statutory right to a speedy trial was violated when the district court declared a mistrial after he refused to proceed to trial with less than 12 jurors. Holder also claims that the district court deprived him of his constitutional right to present a defense when it excluded as inadmissible hearsay an affidavit from an unavailable witness who claimed to be driving Holder's vehicle on the night of Holder's arrest. We find no merit to either of Holder's claims and, therefore, affirm his conviction.
Facts
On June 30, 2009, the State charged Holder with DUI, his fourth or subsequent offense. Holder was arraigned on January 13, 2010, and a jury trial was scheduled for May 5, 2010. At a status conference on April 30, 2010, the parties jointly requested a continuance in order to allow 3 days to be set aside for the trial. At that time, Holder personally agreed to waive his speedy trial rights up to the next trial setting on August 18, 2010. Holder subsequently filed a motion for continuance but later withdrew it. At that time, the trial was continued at the State's request; it was rescheduled for November 3, 2010.
The parties appeared for trial on November 3, 2010. Following voir dire, 12 jurors were sworn in and the district court excused the remaining members of the jury pool. Immediately thereafter, one of the newly sworn jury members, L.W., advised the court that she was sick with “respiratory stuff” and felt nauseous. The court excused L.W. without objection from either party and proposed choosing an alternate to replace L.W. from the three remaining potential alternate jurors and other individuals located by the sheriff. The parties then began a voir dire examination of these individuals. During the examination, defense counsel moved for a mistrial on grounds that the potential jurors all had a connection to law enforcement or the county and, therefore, did not reflect a fair sample of the community. The prosecutor stated, “[U]nless the defense is willing to proceed with 11 jurors, ... I can't object to the motion at this point,” Defense counsel declined to proceed with 11 jurors, and the district court judge granted the motion for mistrial, stating, “I think it's unfortunately appropriate, and I think we have done the best we can, but it just hasn't worked out, and I don't feel that we really have much of an alternative other than to declare a mistrial at this point.” The court then reset the case for jury trial to begin February 2, 2011.
On December 30, 2010, Holder moved to dismiss the charge against him, alleging that the State had failed to bring him to trial within 180 days of his arraignment in violation of K.S.A. 22–3402. At a hearing on the motion, defense counsel claimed that he had been forced to seek a mistrial due to the State's failure to provide an adequate jury pool. Counsel argued that the speedy trial clock kept moving, which meant that the State had failed to bring Holder to trial within 180 days of arraignment. In response, the State argued that the speedy trial clock started anew after a mistrial. The district court took the matter under advisement. Although the district court's ruling on Holder's motion to dismiss is not contained in the record on appeal, the record indicates that the court denied this motion. Holder later renewed his motion to dismiss, which was again denied by the district court. The trial was subsequently continued to March 30, 2011, at the State's request.
Prior to the March 30, 2011, trial setting, Holder filed a motion to admit the hearsay statements of James Shipley. Holder alleged that he had been drinking with Shipley on the night of his arrest and that Shipley later admitted that he, not Holder, had driven Holder's truck that night. Holder claimed that because Shipley was unavailable to testify at trial, Shipley's admission should be admitted through (1) an affidavit signed by Shipley that had been prepared for Holder's administrative hearing, and (2) statements Shipley made to Matt Holder and Tina Holder immediately following Holder's arrest. Holder claimed that the statements were admissible under certain hearsay exceptions, namely: K.S.A.2008 Supp. 60–460(b) (affidavit); K.S.A.2008 Supp. 60–460(d)(3) (contemporaneous statements); and K.S.A.2008 Supp. 60–460(j) (statements against interest).
At a hearing on Holder's motion, defense counsel argued that because Shipley could not be located, his statements and the affidavit were admissible under the previously mentioned hearsay exceptions. The State responded, in relevant part, that Shipley's admissions to drinking and later driving did not expose him to potential criminal liability. The State also noted that Matt and Tina were related to Holder, making their statements regarding Shipley's admission less than credible. The district court ruled that Shipley's affidavit was not admissible under K.S.A.2008 Supp. 60–460(b), as it only permits the admission of an affidavit when its use is specifically provided for by statute, which was not the case here. With that said, the court held Shipley's statements to Matt and Tina were admissible as contemporaneous statements.
The case proceeded to trial on March 30, 2011. There, Holder testified that on the evening of December 31, 2008, he went to a bar with Shipley and that Shipley later drove him home. Holder claimed that he had to enter and exit his truck from the driver's side because the passenger door would not open. Holder denied ever driving his truck that night and claimed that Shipley later came forward and admitted that he had been the driver of Holder's truck.
Shipley's statements to Matt and Tina were admitted over the State's objections. Matt, Holder's brother, testified that on the evening of December 31, 2008, Shipley arrived at his home on foot. Shipley told Matt that Holder was in jail and asked for a ride home. When Matt declined, Shipley called Tina to come and pick him up. Tina, Holder's daughter, testified that Shipley is the father of her children. She stated that she last had contact with Shipley nearly 2 years ago and claimed that she did not know where he was. Tina stated that on the evening of December 31, 2008, she gave Shipley a ride home from Holder's house. Tina claimed Shipley told her that Holder had been arrested, and Shipley admitted to her that he had been driving the vehicle but hid when the police arrived.
Following Tina's testimony, defense counsel requested permission to read Shipley's affidavit to the jury. The district court denied this request but allowed defense counsel to make a proffer of the affidavit's contents.
The jury found Holder guilty of DUI. The district court sentenced Holder to 1 year in the county jail.
Analysis
Holder raises two issues on appeal. First, he claims that his statutory speedy trial rights were violated when the district court declared a mistrial after he refused to proceed to trial with less than 12 jurors. Second, Holder argues that the district court violated his constitutional right to present a defense when it excluded Shipley's affidavit from evidence, claiming that it was admissible as a declaration against interest under K.S.A.2008 Supp. 60–460(j). Each of these allegations is addressed in turn.
I. Speedy Trial
Holder contends the district court erred in denying his motion to dismiss based on an alleged statutory speedy trial violation. Specifically, Holder argues that because he was forced to choose between his right to a speedy trial and his right to an impartial jury of 12, his request for a mistrial should not be interpreted as consent either to the mistrial or to the waiver of his speedy trial rights.
Whether a defendant's statutory right to a speedy trial has been violated is a question of law which appellate courts evaluate using a de novo standard of review. State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678 (2011).
The relevant portion of the Kansas speedy trial statute, K.S.A. 22–3402(2), provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).”
The State is required to ensure that the accused is provided with a speedy trial; a defendant does not have to take any affirmative action to see that this right is observed. State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003). It is well established that the statutory time period for a speedy trial starts on the date of arraignment. State v. Jamison, 248 Kan. 302, 304, 806 P.2d 972 (1991). But in the event of a mistrial, the time limitations period begins to run anew from the date the mistrial is declared. K.S.A. 22–3402(6). “ ‘[B]rought to trial’ “ for purposes of computing a speedy trial deadline relates to the date that the jury panel is sworn for voir dire examination. State v. Bierman, 248 Kan. 80, 88–89, 805 P.2d 25 (1991).
The parties agree that this issue turns on the question of whether the November 3, 2010, mistrial restarted the speedy trial clock. The State claims it did, while Holder suggests that there could be no declaration of a mistrial because the jury had only been sworn in for such a short period of time. Both parties cite to White, 275 Kan. 580, for support of their respective positions.
In White, 12 jurors were impaneled and 2 alternates were selected in preparation for trial. Before any evidence was presented, 4 of the 14 jurors were dismissed after the jurors indicated they could not be impartial. The defense agreed to proceed with less than 12 jurors, but the State did not. The district court declared a mistrial after determining that additional jurors were unavailable. On appeal, the defendant asserted that his speedy trial rights were violated when the State refused to proceed with less than 12 jurors and the court declared a mistrial. Our Supreme Court rejected this argument, noting that K.S.A. 22–3402 provides that in the event of a mistrial, the time limitations begin to run from the date the mistrial is declared. 275 Kan. at 602. The White court held: “Nothing in the statute makes the time limitation dependent upon what caused the mistrial or which party caused the mistrial.” 275 Kan. at 602.
The State alleges that the facts in White are virtually indistinguishable from those in the present case, while Holder claims that White is different because here, a sufficient number of jurors were not available to proceed to trial. To that end, Holder asserts that the short-lived presence of the sworn jury did not bring him to trial “in any meaningful way” as contemplated by the speedy trial statute because even if L.W. had spoken up before the jury was sworn, the same result would have followed and L.W.'s position on the jury would not have been filled due to the lack of available jurors.
But Holder's argument is speculative and ignores the Kansas Supreme Court's decision in State v. Mays, 277 Kan. 359, 371, 85 P.3d 1208 (2004). In Mays, after 12 jurors were impaneled and 2 alternates selected, 4 jurors were dismissed after indicating that they could not be impartial. The jury had not yet been sworn. The parties could not agree to proceed with fewer than 12 jurors, so the district court granted a mistrial. On appeal, the defendant argued that his speedy trial rights were violated because a mistrial cannot be granted before a jury is sworn. In affirming the trial court and finding no speedy trial violation, the Mays court noted:
“K.S.A. 22–3423(1)(a) permits a trial court to terminate a trial and order a mistrial at any time termination is necessary because it is physically impossible to proceed with the trial in conformity with the law. The statute does not define ‘trial’ or state that a trial begins only when the jury has been sworn and, therefore, that jeopardy has attached pursuant to K.S.A. 21–3108(1)(c). However, other statutes include jury selection within references to trial. For example, K.S.A.2003 Supp. 22–3405 requires the defendant's presence ‘at every stage of the trial including the impaneling of the jury.’ “ 277 Kan. at 371.
The court subsequently reasoned that K.S.A. 22–3423(1)(a) allows a trial court to declare a mistrial during voir dire, even before the jury is sworn and jeopardy has attached. 277 Kan. at 371.
If a trial court may declare a mistrial even before the jury is sworn, it necessarily follows that a court also may declare a mistrial after the jury is sworn, even if a juror must be removed shortly thereafter. K.S.A. 22–3402(6) requires that the speedy trial clock be reset after a mistrial has been declared. Here, the district court granted the mistrial on November 3, 2010, and Holder's jury trial began on March 30, 2011, less than 180 days later. As a result, Holder's statutory speedy trial rights were not violated.
II. The Shipley Affidavit
Next, Holder argues that the district court's exclusion of Shipley's affidavit violated his constitutional right to a fair trial because it interfered with his right to present a defense. Specifically, Holder claims that the affidavit was “essential” to his defense because an admission from Shipley was far more compelling and credible than third-party testimony of Shipley's admission.
“[A] defendant is entitled to present his or her defense, and a defendant's fundamental right to a fair trial is violated if evidence that is an integral part of that theory is excluded. [Citation omitted.] But that right is not unlimited. ‘[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.’ [Citation omitted.] Furthermore, when a criminal defendant is allowed ‘to present evidence supporting his or her theory of defense such that the jury could reach a conclusion on its validity, exclusion of other evidence is not necessarily error.’ [Citation omitted.]” State v. Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009).
Whether the district court's ruling interfered with Holder's right to present a defense is subject to unlimited review. See 289 Kan. at 1236.
When considering a challenge to a district court's evidentiary ruling, an appellate court must first consider whether the evidence is relevant. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. The concept of relevance under Kansas law includes both whether evidence is probative and whether it is material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. State v.. Dixon, 289 Kan. 46, 69, 209 P.3d 675 (2009).
Once relevance is established, evidentiary rules governing admission and exclusion may be applied, either as a matter of law or in the exercise of the district court's discretion depending on the contours of the rule in question. When the adequacy of the legal basis of a district court's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo. Dixon, 289 Kan. at 70.
Probative evidence “ ‘ “furnishes, establishes or contributes toward proof.” ‘ “ State v. Garza, 290 Kan. 1021, 1027, 236 P .3d 501 (2010). For evidence to be material, the evidence must “ ‘ “be significant under the substantive law of the case and properly at issue.” ‘ “ State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). Evidence that someone other than Holder was driving his truck on the night of his arrest was obviously probative and material to Holder's defense for DUI; therefore, Shipley's affidavit is relevant.
Even though the evidence is relevant, however, it is not necessarily admissible. Shipley was not available to testify at trial; therefore, the introduction of any statements made by Shipley would constitute hearsay. Hearsay evidence is “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S .A.2008 Supp. 60–460. Hearsay is inadmissible, unless it fits within one of the statutory exceptions listed in K.S.A.2008 Supp. 60–460. State v. Franklin, 280 Kan. 337, 340–41, 121 P.3d 447 (2005). One of those exceptions is an affidavit, when its use is specifically provided for by statute. K.S.A.2008 Supp. 60–460(b). The district court held that Shipley's affidavit was not admissible under K.S.A.2008 Supp. 60–460(b), as there was no “statute that says in this type of proceeding an affidavit is allowed.” On appeal, Holder does not appear to rely on K.S.A.2008 Supp. 60–460(b); rather, he claims that Shipley's affidavit was admissible as a statement against interest under K.S.A.2008 Supp. 60–460(j). This statute allows for the admission of a hearsay statement:
“which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.” K.S.A.2008 Supp. 60–460(j).
Holder relies on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), State v. Meinert, 31 Kan.App.2d 492, 67 P.3d 850,rev. denied 276 Kan. 972 (2003), and State v. Campbell, 29 Kan.App.2d 50, 23 P.3d 176 (2001), as support for his argument that Shipley's affidavit constituted an admissible statement against interest. But these cases are readily distinguishable from Holder's case, as they all involved situations where someone other than the defendant, a third party, admitted to committing the charged crime, which subjected the third party to criminal liability. See Chambers, 410 U.S. at 292 (third party admitted he shot police officer that defendant was convicted of murdering); Meinert, 31 Kan.App.2d at 495 (third party admitted to police that he, not defendant, beat victim); Campbell, 29 Kan.App.2d at 63–64 (defendant's husband made jailhouse confession to killing his daughter).
Shipley's affidavit provides, in relevant part:
• On December 31, 2008, he went to a Lawrence bar with Holder where they drank until about 5 p.m.
• While at the bar, Shipley felt that Holder had consumed too much alcohol to safely drive, so Shipley offered to drive him home and took Holder's keys.
• Shipley drove Holder to his home in Baldwin.
• At no time after leaving the bar did Holder drive the vehicle.
• Upon arrival at Holder's home, Shipley immediately exited the vehicle while Holder remained by the truck.
• Shipley “was aware of the fact that police officers came to Randolph J. Holder's home but did not leave the house since I had been drinking and assumed that he would not experience any difficulty with the police officers since he had been a passenger in the vehicle when it was driven from the Jet Lag Bar in Lawrence, Kansas to his home.”
Holder suggests that Shipley's affidavit is admissible as a statement against interest because Shipley admitted to driving Holder's vehicle and to remaining inside Holder's house because he had been drinking. But Shipley's statements in the affidavit did not subject him to criminal liability and they were not otherwise against his pecuniary or proprietary interest. While the affidavit reflects Shipley's observation that Holder had consumed too much alcohol to safely drive, it gives no indication as to how long Shipley and Holder remained at the bar and says nothing about the extent of Shipley's intoxication, level of impairment, or ability to safely drive a vehicle. Proof that a person has committed the crime of DUI requires more than a person's statements that he or she drank an unknown quantity of alcohol and then sometime thereafter drove a vehicle. See K.S.A.2008 Supp. 8–1567. If Shipley had given this statement to the police at the time of Holder's arrest, it would have arguably constituted a statement against interest because it likely would have subjected him to criminal liability. Notably, however, Shipley's affidavit is dated May 11, 2009, more than 4 months after Holder's arrest and obviously well past the time that Shipley could be tested for DUI.
Simply put, Holder cannot show that Shipley's statements in the affidavit were contrary to his pecuniary or proprietary interest or otherwise subjected him to any criminal or civil liability. Although Shipley's admission to drinking alcohol and later driving Holder's vehicle might subject him to social stigma or disapproval, such stigma does not rise to the level of making Shipley the object of community hatred, ridicule, or social disapproval such that a reasonable person in Shipley's position would not have made the statements unless he believed them to be true.
Shipley's affidavit was inadmissible as a statement against interest under K.S.A.2008 Supp. 60–460(j). Therefore, it cannot be said that the district court's exclusion of the affidavit at trial interfered with Holder's constitutional right to present a defense.
Affirmed.