State v. Kelly

The opinion of the court was delivered by Luckert, J.: Recently, in State v. Bogguess, 293 Kan. 743, 268 P.3d 481 (2012), this court held that the lack of an objection during a bench trial that consisted solely of stipulated facts did not preclude appellate review of the pretrial denial of a defendant’s motion to suppress. We explained that “when the bench trial is conducted by the same judge who presided over the hearing on the motion to suppress, there is no reason to rehash the same arguments when no additional evidence has been presented.” Bogguess, 293 Kan. at 747. This case raises the question of whether the Bogguess holding applies when the bench trial is conducted by a different judge than the one who made the pretrial suppression ruling. We conclude that having more than one judge involved in the proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a defendant’s stipulation to facts for the purpose of a bench trial precludes a defendant from asking the trial judge to ignore—in other words, suppress—evidence that a defendant has agreed can — 588 — be admitted and considered. Second, because the case is tried solely on stipulated facts there will be no new evidence or arguments submitted that might change the ruling on the motion to suppress. Consequently, there is no legal or factual basis to revisit the suppression issue. In this case, the defendant's objection to evidence was preserved, and the Court of Appeals erred in concluding it was not. Factual and Procedural Background Michael J. Kelly, Jr., appeals from his convictions of possession of cocaine, a severity level 4 drug offense, and possession of marijuana, a class A nonperson misdemeanor. Before trial, Kelly filed a motion to suppress the drug evidence, arguing the drugs were seized during an unlawful traffic stop. A district judge conducted an evidentiary hearing and denied Kelly s motion. After the district judge ruled, Kelly waived his right to a jury trial. Kelly s case then proceeded to a bench trial before a different district judge than the one who had denied Kelly’s motion to suppress. At the bench trial, the parties stipulated to the admission of a laboratoiy report and an affidavit of a detective who investigated the case. The detective recited details of the traffic officer’s arrest report, noting that Kelly had been stopped for failing to signal and had been arrested when he told the traffic officer his driver’s license was suspended. A search incident to arrest revealed substances in Kelly’s pockets that the traffic officer suspected were marijuana and cocaine. The laboratory report confirmed the suspicion. No evidence other than the laboratoiy report and the affidavit was admitted. The trial judge stated that he had “review[ed] the content of the court file” but did not specifically mention the motion to suppress. Kelly did not mention the motion either and did not state any objections to the judge’s consideration of the evidence. The trial judge found the evidence sufficient to convict Kelly as charged. Kelly appealed his convictions, and the Court of Appeals summarily affirmed under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59). The Court of Appeals concluded Kellys challenge — 589 — was procedurally deficient under State v. King, 288 Kan. 333, 204 P.3d 585 (2009), due to a lack of an objection as required by K.S.A. 60-404. Kelly sought this court’s review of the Court of Appeals’ decision, arguing K.S.A. 60-404 only requires a “timely” objection and he timely objected by filing a motion to suppress. According to Kelly, a subsequent objection during trial was unnecessary because the issue of guilt was submitted to the trial judge on the basis of stipulated facts. In other words, there was no new evidence relating to the suppression issues and no opportunity for the trial judge to hear anything that would cause the pretrial ruling to change. This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e). Analysis This court’s decision in King, 288 Kan. 333, which served as the basis of the Court of Appeals’ summary affirmation of Kelly’s convictions, considered the application of K.S.A. 60-404, which states: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to malee clear the specific ground of objection.” Although the statute is worded in terms of an objection that is “timely interposed,” caselaw frequently uses the term “contemporaneous objection” to describe the preservation requirement. In King, using tire term “contemporaneous-objection rule” to refer to K.S.A. 60-404, we explained the purpose of the rule, stating: “[T]he objection requirement is a ‘salutary procedural tool’ that gives the district court ‘die opportunity to conduct the trial without using ... tainted evidence, and tiius avoid possible- reversal and a new trial.’ [This court has] . . . noted that the contemporaneous-objection requirement is ‘practically one of necessity if litigation is ever to be brought to an end.’ [Citation omitted.]” King, 288 Kan. at 342. Other statutoiy provisions are also aimed at reducing the risk of presenting tainted evidence at trial. One of these provisions, K.S.A. 22-3216(3), is particularly relevant in this case. K.S.A. 22-3216(3) provides that a motion to suppress illegally seized evidence “shall be made before trial, in the court having jurisdiction to try the — 590 — case, unless opportunity therefor did not exist or the defendant was not aware of tire ground for the motion, but the court in its discretion nray entertain the motion at the trial.” In considering the motion to suppress illegally seized evidence, the “judge shall receive evidence on any issue of fact necessary to determine the motion.” K.S.A. 22-3216(2). We have not viewed the requirements of K.S.A. 60-404 and K.S.A. 22-3216 as mutually exclusive. This court has generally treated motions to suppress like other preliminary or in limine orders and held that an objection must also be made at trial in order to satisfy the requirements of K.S.A. 60-404, even though a pretrial ruling has been obtained. E.g., State v. Houston, 289 Kan. 252, 270-71, 213 P.3d 728 (2009). In Houston, we explained the reasons for requiring an objection at trial, stating, in part: “Among other advantages, this holding allows a court to rale on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared—after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41-42, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (in limine ruling ‘is subject to change when the case unfolds’).” Houston, 289 Kan. at 270. We have also explained that a pretrial ruling is not sufficient because the “materiality of the proposed evidence may not become actually apparent until other evidence has been admitted.” State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989); but see State v. Hollingsworth, 289 Kan. 1250, 1260-61, 221 P.3d 1122 (2009) (Johnson, J., dissenting) (noting that K.S.A. 60-404 does not require a defendant to renew an objection at trial). In other words, a pretrial objection by itself is not timely because the evidence may be different from that submitted at the pretrial hearing or the evidence may be viewed differently by the judge in the context of all of the evidence and argument heard at trial. As we explained in more detail in Bogguess, this court had not previously considered whether these same considerations apply when a case is tried on stipulated facts to a judge. We concluded they did not. In doing so, we explained that when a case is tried solely on stipulated facts, there is no basis for the judge to recon — 591 — sider a pretrial ruling because the defendant has waived the right to dispute the evidence. Bogguess, 293 Kan. at 745 (citing State v. Downey, 27 Kan. App. 2d 350, 359, 2 P.3d 191, rev. denied 269 Kan. 936 [2000]). Hence, the trial judge does not have the opportunity to reconsider the pretrial ruling. Additionally, because no witness testifies, the evidence will not unfold in a manner different from that already considered. In essence, the record at the time of the threshold consideration is the only record that will be made on the issue. As a result, requiring a trial objection would be futile, and the pretrial objection is a timely interposed objection that is sufficient to preserve the issue for appeal under K.S.A. 60-404. Bogguess, 293 Kan. at 747. At oral argument, the State recognized the recent holding in Bogguess but argued we should not extend the holding beyond the facts in that case or those in State v. Bastian, 37 Kan. App. 2d 156, 150 P.3d 912 (2007), in which the Court of Appeals had reached the same holding as this court reached in Bogguess. There are three potential distinctions between Bogguess, Bastían, and this case: (1) in Bogguess and Bastían, one judge presided over both the pretrial motion to suppress and the trial as compared to this case where a different judge handled each stage; (2) Bogguess’ counsel explicitly mentioned a desire to appeal as a reason Bogguess was waiving the right to trial by jury, but Kelly’s counsel did not; and (3) at sentencing, Bogguess’ counsel mentioned the plan to appeal the suppression ruling, but Kelly’s counsel did not. We conclude none of these differences are significant to the holding in Bogguess or Bas-tían or to the rationale supporting the holding. First, having more than one judge involved does not change the fact that a trial judge considering stipulated facts does not have the opportunity to reconsider a pretrial suppression ruling. A defendant’s stipulation precludes a defendant from asking the trial judge to suppress evidence because a defendant has agreed the evidence can be admitted and considered. Bogguess, 293 Kan. at 745; Downey, 27 Kan. App. 2d at 359. As a result, a trial objection would be unnecessary—as opposed to being timely interposed as required by K.S.A. 60-404—because it would contradict the stipulation. — 592 — The second difference between Bogguess and this case is that Bogguess’ counsel specifically stated that Bogguess did not want to put the victim’s family through a trial but wanted to appeal. Because the same judge presided over all the proceedings in Bog-guess, the judge was aware of these statements. In contrast, in Kelly’s case, immediately after a district judge denied Kelly’s pretrial suppression motion, Kelly’s counsel advised the judge that she had told the prosecutor before the suppression hearing that “if the Motion to Suppress was not successful, that we intended to waive the jury trial.” Kelly’s counsel then asked the district judge to make a record of the waiver and to set the matter for bench trial. Counsel did not mention a plan to appeal. The differences in the statements made by Bogguess’ counsel as opposed to those made by Kelly’s counsel are not significant to our analysis. It is not necessary to make an announcement during trial that an appeal is planned in order to preserve a right to appeal an issue. Moreover, while Kelly’s counsel could have announced this intent at trial, counsel still could not have asked the trial judge to suppress the evidence after Kelly had stipulated to its consideration. Further, there is no indication anyone was misled as to the purpose of the proceeding or the intent to preserve appellate rights. Kelly, like Bogguess and innumerable other defendants proceeding to trial on stipulated facts, understood a conviction was almost certain. Yet, electing to have a bench trial preserved Kelly’s right to appeal the motion to suppress and any other legal issues without a jury trial. In contrast, had Kelly waived his right to a jury trial by entering a guilty or no contest plea, he would have waived his right to appeal most issues relating to his convictions, including the suppression issues. See K.S.A. 2011 Supp. 22-3602(a) (“No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.”). Because of the limitations on the right to appeal imposed by K.S.A. 2011 Supp. 22-3602(a), exercising a right to a bench trial on stipulated facts is commonly understood to be a mechanism to preserve — 593 — legal issues for appeal in a situation where there are no factual defenses or, at least, no factual defenses that are likely to succeed. Given the foreseeability of conviction, a defendant makes the decision to forego the expense and rigors of a jury trial while preserving legal issues for appeal. Ironically, the Court of Appeals’ decision in this case exposes Kelly to additional costs and burdens by setting up the scenario where Kelly will be required to pursue a K.S.A. 60-1507 claim of ineffective assistance of counsel for failing to preserve the suppression issue and then pursue the legal issue. These additional burdens are not required by K.S.A. 60-404 where a timely objection had been made and the purpose of the procedure was understood. The final difference between Bogguess and this case relates to statements made or not made at the time of sentencing. At Bog-guess’ sentencing hearing, his counsel stated, “I would just like to reiterate our objection to the inclusion of his statements in any of the Court’s decision making.” Bogguess, 293 Kan. at 745. Counsel again stated he was trying to preserve the motion to suppress. In contrast, at Kelly’s sentencing hearing, his counsel did not make a similar statement. The sentencing judge in this case, who was a different judge than the one who heard the motion to suppress or tire one who conducted the trial, stated: “[Y]ou had a bench trial in this case and there are some appeal rights that you have that are your right to pursue if you wish.” This review of rights was generic, however, and not specifically tied to the suppression issue as it was at Bogguess’ hearing. Again, however, this procedural difference is not relevant to the reasons we have held the objection need not be restated at trial. Granted, we have considered posttrial motions timely in some circumstances. For example, in State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976), superseded by statute on other grounds as stated in State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001), we concluded an objection stated after a bench trial but before the judge had ruled was timely interposed because “the spirit if not the letter of the contemporaneous objection rule was satisfied.” In Bogguess’ case, however, the trial court had found him guilty before the objection was restated at the sentencing hearing. Conse — 594 — quently, an objection to trial evidence stated at sentencing was not timely. In summary, there is no persuasive basis to reach a result in this case that differs from the result in Bogguess. Consequently, we hold that Kelly timely interposed an objection to the admission of evidence by filing a pretrial motion to suppress illegally obtained evidence, and in doing so he satisfied the requirements of K.S.A. 60-404 despite his failure to reiterate tire basis of his motion during the bench trial on stipulated facts. Consequently, we reverse the Court of Appeals’ decision to summarily affirm Kelly s convictions. We remand Kelly s appeal to the Court of Appeals for consideration of whether the district judge erred in denying his motion to suppress. Reversed and remanded to the Court of Appeals with directions. * ⅜ ⅜⅜