State v. Brown

92,413 No. v. Michael Kansas, Brown, Appellee, State Appellant. J. (157 624) P.3d filed

Opinion April Kittel, Office, Rick A. of Kansas Defender the cause and was Appellate argued on the brief for appellant. cause, Kline, Kim Wiechman and Cudney, county Phill attorney, argued was with her on the brief attorney general, appellee. The of the court was delivered opinion Michael Brown was convicted McFarland, by jury C.J.: J. while a vehicle under in- involuntary manslaughter operating (K.S.A. 21-3442) fluence of alcohol under Supp. driving (K.S.A. the influence 8-1567[a][2]). of alcohol He Supp. ap- his convictions and sentences to the Kansas Court of pealed Ap- issues, several a claim that the trial court peals, raising including erred his motion for because he was not denying discharge to trial within the brought applicable statutory speedy period. The Kansas Court of affirmed Brown’s conviction for Appeals while under the al- influence of involuntary manslaughter driving cohol, but vacated the sentence due to error criminal calculating and remanded for reversed the history resentencing. panel conviction of under the influence of on alcohol driving ground it Brown, multiplicitous. (Assented (2005). P.3d 1035 One member of the on the panel Brown’s for review the trial issue. We petition of whether Brown’s trial was issue statutory right single violated. that we determine whether

The issue before us requires the defendant’s continuance of the trial date is trial due to delay the motion for continuance was measured from date granted trial date. We or from the scheduled hold period to be assessed to the defendant on the date the continuance began was granted.

FACTS 15, 2003, in On Michael Brown was County, April Washington a motor vehicle which his wife and son were operating passen- made a wide turn into Brown the westbound lane of gers. Highway 36 east. The Brown vehicle collided with another vehicle heading wife, Ruth, westbound. Brown’s died the driving following day a result of sustained in the collision. Brown’s blood was injuries tested and was found to contain a blood level 0.10 alcohol grams of alcohol 100 milliliters of blood. More details are set forth in per Brown, 746.

FACTS RELEVANT TO SPEEDY TRIAL 4, 2003, Brown was on and was taken into cus- arraigned June on that date. The court set the case for trial to tody jury begin 20, 30, 2003, 2003. On Brown’s filed a motion August July attorney to continue the trial in order to retain an witness. On expert August 1, 2003, court the motion and reset the trial to 27, October 2003. The the motion stated: journal entry granting “The time is assessed to the defendant.” 27, 2003,

On October was ill. This caused county attorney the trial court to vacate date and set the case for a trial conference to be held November 2003. As a result rescheduling conference, of tlris the trial was reset for November 13, 2003, On November Brown filed a motion for discharge pur- suant to K.S.A. 22-3402 that the statutory 90-day alleging period on November 2003. Brown contended that the expired his continuance commenced run trial date. The State countered that the attrib- utable to Brown’s continuance should be from computed 1, 2003, the date the continuance was If the 19 be- days granted. tween the date the motion was scheduled originally defendant, trial date are assessed to the then only days elapsed and trial. If the 19 are assessed to the arraignment State, then 101 had elapsed. convenience,

For chart shows the relevant chron- following events and the ological dispute:

NO. OF CHARGEABLE TO: DATE(S) EVENT DAYS STATE DEF. DISPUTED 1. 6/4/03 case No Arraignment; set for 8/1/03 8/20/03.

2. 8/1/03 Defendant’s motion 19 Yes

to for continuance to

8/20/03 retain expert granted; trial reset for

10/27/03. 68 3. 8/20/03 Period of time 68 No to between original

10/27/03 trial date and

rescheduled trial

date. 4. 10/27/03 Trial date vacated 25 25 No due to county illness;

11/20/03 attorney’s

trial rescheduled

for 11/20/03. Trial

commenced 11/20/03.

TOTALS Brown, The trial court assessed the 19 days dispute holding: “Because the continuance was defendant it seems sought by logical time to defendant should be from the time his chargeable 1, 2003) motion was to the continued trial date granted (August (October 2003).”

The Court of affirmed the district court’s denial of the Appeals motion for with two members of the discharge, panel holding from the date the continuance was until the res- cheduled trial date was the defendant chargeable against 22-3402(1). to K.S.A. State v. purposes pursuant Brown, 34 Kan. 2. The dissent con- Syl. ¶ disagreed, should be from the tending computed scheduled trial date. originally

ISSUE The same narrow issue sole issue before us. Under the herein, facts should the 19 between the of tire de- granting fendant’s motion continuance and the trial date be to the defendant for charged computation statutory speedy Our answer is purposes? yes.

STANDARD OF REVIEW A claimed violation of the statutory right presents an issue of law over which we have unlimited review. White, 580, 598, 67 (2003). Moreover, P.3d 138 the ques tion of how to the number of to be excluded from compute trial calculation involves statutory speedy statutory interpreta tion, which is also a of law over which we have unlimited question review. See 275 Kan. at 600.

APPLICABLE STATUTE K.S.A. 22-3402 to trial and governs statutory right speedy in provides pertinent part: “(1) If with a crime any and held person charged reason thereof jail solely by (90) shall not be trial within brought after such ninety person’s arraignment on the such shall be entitled to be charge, person from further discharged liability

to be tried for the crime unless the shall as a result of the charged, happen defendant, a continuance shall be ordered or fault of tire or by

application (3). subsection court under “(3) The time for trial be extended the Hmitations subsections may beyond (2) (1) of this section for reasons: any following trial; (a) The defendant is to stand incompetent (b) the defendant’s to stand trial is A to determine competency proceeding within lim- and a determination thereof not be the time may completed pending section; itations fixed for trial this by unavailable; (c) There is material evidence which is that reasonable efforts have evidence; such and that there are reasonable been made to procure grounds believe that such evidence can be obtained and trial commenced within the next Not more than one continuance be the state on days. may granted succeeding shown, unless for cause where the continuance was for this ground, good (120) less than 90 and the trial is commenced within one hundred days, twenty date; from the trial trial, (d) Because of other cases the court does not have sufficient pending fixed trial time to commence the trial of the case within the time this section. more than one of more than Not ordered thirty days maybe this upon ground.”

DISCUSSION it is State’s ensure accused Although obligation to trial within the brought applicable speedy period, delays which result from the defendant’s or fault are not Southard, counted in statutory period. 744, 746, (1997). Kan. 933 P.2d 730 Such include those delays which result from a continuance at the of the de- request defendant, fendant. A in the by requesting acquiescing grant continuance, waives the to a trial. State v. statutory right (1994). 879 P.2d 613 Bafford, 22-3402(1) While K.S.A. a contin- provides uance at the defendant’s is excluded from the request calculation, does not set forth it how to such compute Further, cited, found, have not nor have we delay. parties case which we have been asked to determine whether speedy due to the of a defendant’s motion for contin- granting uance should be measured from the date the continuance was Thus, or from the set trial date. this is an issue granted, previously of first impression. note there are cases in which due to a defense contin-

We delay but the results are inconsistent uance was because computed, See, was not at issue. of when to State begin counting question e.g., Smallwood, 69, (101 (1998) 955 P.2d 1209 v. 264 Kan. of which was the time delay, period setting date, continuance); new trial attributed to defendant’s State v. 389, Bean, (1984) (defendant 236 Kan. 691 P.2d 30 with charged due to continuance from scheduled trial date to originally Arrocha, date); 120, new trial State v. 30 Kan. 39 P.3d 101, (2002) (date rev. denied 273 Kan. 1037 defense continuance served as the stalling point period defendant). attributed to of delay motions,

There are also cases defense addressing delay such as motions to or the of a notice of intent to suppress, filing See, Southard, on an defense. State v. 261 Kan. rely insanity e.g., (where defense counsel at arraignment requested hearing withdrawn, date for motion to that was later anticipated suppress of time between period arraignment hearing chargeable defendant); 561, v. 257 Kan. City City Dodge Downing, (1995) P.2d 206 between the date the defendant (period filed motion to and a reasonable of time for the suppress defendant); court to rule it on attributed to the 251 Kan. Ji, 832 P.2d 1176 between date defendant filed no- (period tice of intent to on defense until date filed rely insanity report defendant). cases, however, attributed to Those do not involvecon- and, thus, tinuance of a scheduled trial date are of little previously assistance herein. have, however,

We considered how to excludable compute with to continuances obtained the State under 22- respect 3402(3)(c). White, In State v. 275 Kan. we held that the 90- allowed for a continuance to the State under day period 22-3402(3)(c) date, K.S.A. on the begins date on which the motion to continue was granted. However, this conclusion rested on the

Syl. ¶ heavily specific (3)(c): of subsection wording 22-3402(3)(c) “The of K.S.A. portion allowing 90-day simply

states the trial be continued if there are reasonable to believe may grounds (90) the trial can ‘within the next The next sentence begin succeeding ninety days.’ continuance for cause shown if the continuance allows for another good original than 90 ‘and the trial is commenced within one hundred was for less twenty (120) added.).” from the trial date.’ 275 Kan. at 600-01. (Emphasis or on the issue White is before us. controlling persuasive There is a difference between the used significant language 22-3402(1), which excludes K.S.A. results from the delay “ap- defendant,” or fault of the used in plication language 22-3402(3)(c), K.S.A. which refers to continuances for rea- specific and time from the trial sons date. specific periods 22-3402(1), With no case on K.S.A. we look point interpreting to the of the statute. The rules our role are language governing well established: “The fundamental rule of construction is to ascertain the statutory legislature’s intent. The is to have its intent the lan legislature presumed expressed through words are scheme. their statutory Ordinary guage given ordinary meanings.

A statute should not be read to add that is not found in it or to exclude language that is found in it. When a is statute the court language plain unambiguous, must effect to the intent as rather than give legislature’s expressed determining what the law should should not be. [Citation omitted.]” Bryan, 157, 159, 130 (2006). Kan. P.3d 85 rule, 22-3402(1) this we see that K.S.A.

Applying provides— without restriction —that as a result of the delay happens ap- or fault of the defendant shall not be considered in com- plication hand, trial. On the other due ato puting statutory speedy (3)(c) continuance to the State under subsection permitted specif- references the trial date” as the date for ically “original operative an extension of the trial time speedy period. The fact that subsection attributes caused the de- by restriction, fendant without while a time extension due the (3)(c) restricted, State’s continuance under subsection is is a clear of the fact that it is the State’s not the de- expression obligation, fendant’s, to insure that the accused within the brought Warren, See State v. statutory speedy period. Thus, (1978). P.2d trial clock runs speedy against State, 22-3402(1) unless it is under K.S.A. as result stopped

of the fault or of the defendant or the time is extended 22-3402(3). under a continuance to the State Accordingly, granted extends under and narrow speedy very specific that the continuance is needed to upon showing circumstances — obtain material evidence, that reasonable efforts have been made evidence, such and that such evidence can be obtained procure and trial commenced within the next 22-3402(3)(c). K.S.A. days. hand,

On the other to a trial is a or benefit right right defendant; such, to the the defendant waive this provided may a continuance or otherwise the trial. right requesting delaying See State v. Thus, 255 Kan. at 892. a trial Bafford, to a defendant for reason trial clock. any stops This includes not cause,” continuances but only “good also defendant, whether or not such any delay for a aor meritorious reason. necessary, legitimate puipose, the of subsection that Accordingly, language provides delay results from the defendant’s or fault is not counted in the with no date computing period, operative specified such willWe not read an date into delay. operative this language. 22-3402, under K.S.A. the to the

Clearly, provisions applicable defendant and to the State are different. In his motion for a veiy continuance, Brown time to retain an witness. He sought expert did not state what witness he was he type expert why seeking, witness, needed such a or whether he had made reasonable efforts to secure such a witness. The statute does not previously require such State, the of a defendant. The on the justification part hand, other would be such a with required justify request speci- if its motion is to extend the time. Illustrative of the ficity going second, difference is the effect of the trial date due to the delay illness. There is no in the statute ex- county attorney’s provision the time illness, result of a and there is tending prosecutor’s no contention that it Yet, should have that effect herein. had the second trial date been due to the illness of defendant or delayed counsel, his the clock would have been as the was stopped delay the result of the fault of the defendant.

We the notion that the continuance did not cause reject actually until the trial date The matter of defendant original passed. to be time con- an witness was anticipated

possibly securing expert the trial could have been res- There was no possibility suming. 20. The the continu- cheduled for journal entry August granting ance states part: “Thereupon, defendant the the court orders die any provide report 10, die State defense witness to by September

expert 28, “Thereupon, to October 27 and the court orders the continued If of a if of a defense witness is notice 2003 at 9:00 a.m. no notice given. expert 12,13, 14, the trial shall be scheduled for November defense expert given 2003 at 9:00 a.m.” date within the case was set for trial on 2003—a

This August it did not to trial that reason only go day period. for continuance. was that the court defendant’s request words, successful for a In other but defendant’s request continuance, he have been to trial on would brought 22-3402(1). As a within the mandated K.S.A. 90-day matter, tire once granted, practical Therefore, and of no trial date was off the table significance. commencement date for computing appropriate was the date the motion for continuance was the continuance granted. Arrocha, v.

The dissent contends the from State following quote the State with the 19 days supports assessing between the date Brown’s motion was trial: all “The State that Arrocha briefly argues acquiesced 17 and October 30. This is not record. On argument supported by a trial The announced it Arrocha State August requested setting. 18, for trial on but the defense was not. The court set tire ready September defense, trial to on October tire and the case for prosecution, begin die 18 court that the defense would be assessed time from to agreed September October 30. It is to should also have been assessed illogical argue defense the time 18 when the State had the September sought September from The district court assessed the properly days setting. from added.) Arrocha, 123. 18 to the State.” 2d at September (Emphasis not, contends, in as the

The Arrocha is dissent 32-day period at in The case to the 19 issue this case. instant days analogous a narrow set of circumstances —the of a concerns very granting of a trial defense motion scheduled previously time not in- date. The of addressed Arrocha did 32-day period a volve a for continuance of trial defense set request previously Moreover, admits, in date. as the dissent other of the Arrocha parts dates, defense continuances set of trial opinion involving previously were served the date those continuances as the starting attributed to the defendant. these Under point counting delay circumstances, Arrocha is helpful.

The recent to the trial statute do not alter our changes (3) conclusion. New subsection of K.S.A. 2006 22-3402 re- Supp. at trial continued the of the defendant be quires request rescheduled within 90 of the trial deadline: days “(3) trial If scheduled within the time limitation any subsection prescribed by (1) (2) defendant, or of is the or at the of the the delayed by application request trial shah be rescheduled within 90 trial the deadline.”

The of the before form statute us has no comparable provision relative of a defendant. This new sub- delays application section the trial to be rescheduled within 90 requires deadline,” date,” not the which is “original “original 22-3402(5)(c) [3][c]), term used K.S.A.2006 Supp. (formerly relative to extensions. See L. ch. sec. This prosecution is difference and is not inconsistent with the we result significant reach herein. The clock continues to run is a unless there 90-day a result of the fault defendant which application the clock. When is caused the time stops prosecution, for trial be extended if the reason is within therefor one of the may therefor. new subsection aimed at statutory grounds placing on the court State to restart the trial clock duty which has been or fault of the defendant stopped by and to the trial reset date within a time This new specific period. does not affect the issue before us. provision

CONCLUSION herein, We hold under the facts of excludable to be to the defendant from runs the date the de- charged fendant’s motion for a continuance was and not from the scheduled trial date. previously the district

We affirm the Court of affirming Appeals opinion the motion for court’s denial of discharge.

Luckert, participating. J., Retired,

Lockett, assigned. J., Beier, I dissent from my colleagues’ J., dissenting: respectfully trial issue in this case. on the narrow ruling address one of the I am On way elaborating, compelled “We note cases cited for the following proposition: majority a there are cases in which due to defense continuance are because the of blit results inconsistent computed, question at at 8. The case when to was not issue.” Slip op. begin counting is rev. denied Arrocha, 30 Kan. 39 P.3d App. cite to Arrocha is (2002). 273 Kan. 1037 The majority’s accompa- “date defense continuance was nied aby saying, parenthetical served as the point computing starting at 8. This contrasted with attributed to defendant.” Slip op. a defense con- two other Kansas cases time following tinuance differently. Arrocha,

This reference to a decision I wrote while serving tells half the to which the Court of Appeals, story. passage assume did when no ex- refers majority’s evidently parenthetical was before the court that the dates on which de- plicit challenge fense continuances were started the run- clock sought Arrocha, the defendant. 2d at 124. ning against however, an Another of the described how earlier portion opinion, time allocated between the State and the should be segment to the 19 defense and addressed period analogous specifically at issue in this case. That stated: portion opinion State that Arrocha to all of the “The briefly argues acquiesced 17 and October 30. This is not the record. On argument supported The State announced it Arrocha requested setting. for trial but was on the defense was The not. court set the ready September defense, case for trial to on October and the the and the begin prosecution, be court the defense would assessed the time 18 from to agreed September 30. October It is should also have been assessed illogical argue defense the time 18 17 when the State had the August September sought September from 18 The court the 32 district assessed 17 to setting. properly days August from added.) Arrocha, 18 to the State.” 2d at 123. September (Emphasis App. I believe now I assumed too much in Arrocha when I for took or of a defense continuance any request grant tire started clock the defendant necessarily against immediately. The of more nuanced the above approach passage quoted appears to be correct.

The the statute that a defendant held governing language says reason of the crime for 90 more jail solely by charged days shall be “unless the shall as a result of discharged happen the or fault of the defendant.” K.S.A. 2006 22- application Supp. 3402(1).

The 1, 2003, of the between Oc- and only portion August tober attributable to “the or fault of’ Brown application date, die between the the and portion August date, 27, i.e., first rescheduled trial October the like days. Just Arrocha, time between 17 and 18 in the 19 September August days the court’s decision Brown’s motion for continuance and the trial date would have without Brown’s elapsed motion been filed. those having Any delay represented by State, laid at must be the feet of the which bears the obligation see that the defendant a receives trial. The result opposite timely is, Arrocha, as I said in illogical.

It also contravenes statute. plain language controlling The 19 without trial between 1 and 20 were August not “the result of the or fault of’ Brown. K.S.A. 2006 22-3402(1). The court had set date Supp. long motion, before Brown’s and the court are on “prosecution Arrocha, the same team for calculation purposes.” Kan. 2d at even if I did not believe that the rule contra-

Finally, majority’s law, venes and I would dissent it because will logic provide per- counsel to resist to defendants and their verse incentive filing as soon the need for it for continuance as becomes motion appar- filed, The later such a motion is the more ent. likely process cause and inconvenience for the it is to schedule disruption pros- ecution, defense, witnesses,' the court. later in the and filed, it less is to be such a motion likely granted, process such those in K.S.A. if it is meritorious. Procedural rules even dis- 22-3402(1) should and facilitate correct streamline Supp. cases, the re- them or of criminal complicate impair position of their results. liability reasons, all of I would the Court of

For reverse foregoing court an order the district and remand entry Appeals and defendant. dismissing prosecution discharging Nuss, Allegrucci JJ., join dissenting opin- foregoing ion.

Case Details

Case Name: State v. Brown

Court Name: Supreme Court of Kansas

Date Published: Apr 27, 2007

Citation: 157 P.3d 624

Docket Number: 92,413

Court Abbreviation: Kan.