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State v. Dumars

April 6, 2007


Appeal from Saline District Court. DAN D. BOYER, judge.


1. When an appellate court has remanded a case for further proceedings consistent with its mandate, a district court is obliged to effectuate the mandate and may consider only those matters essential to the implementation of the ruling of the appellate court. A determination of the district court's compliance with an appellate court mandate constitutes a question of law over which an appellate court possesses unlimited review.

2. The appellate mandate rules are a subset of judicial policy regarding law of the case and are designed to implement consistency and finality of judicial rulings.

3. An appellate court does not decide moot questions or render advisory opinions. The rule is based upon a judicial policy of adjudicating only real controversies relative to the legal rights of persons and property involved in a particular case so that the judicial determination will possess operative and conclusive effect.

4. Mootness is not a question of jurisdiction, and the courts have routinely acknowledged two exceptions to the rule. First, where a judgment is not enforceable only because of lapse of time or other changed circumstances and where dismissal of an issue will adversely affect rights vital to one of the parties, a court may address the issue. Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue.

5. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits a person from being twice placed in jeopardy for the same offense. The protection of the Double Jeopardy Clause contains three components, shielding an accused from: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. The Double Jeopardy Clause is applicable to the states through the Fourteenth Amendment to the United States Constitution.

6. The constitutional prohibition against double jeopardy does not absolutely bar retrial. When an initial trial results in a conviction, and the conviction is reversed because of trial error, including prosecutorial misconduct, double jeopardy generally does not bar retrial.

7. When a conviction is reversed for insufficiency of the evidence, double jeopardy bars any further prosecution for that particular offense.

8. Not every trial error or infirmity which might call for application of an appellate court's supervisory powers correspondingly constitutes a failure to observe that fundamental fairness that is essential to the very concept of justice. Application of the fundamental fairness component of the Fifth Amendment's Due Process Clause should be reserved to intolerable conduct which shocks mind and conscience.

9. Fundamental fairness implies a balancing of the interests involved in criminal prosecution. Although a defendant possesses a significant interest in being free from harassment and the burden of repeated trials, the State possesses a significant interest in the sound administration of justice.

The opinion of the court was delivered by: Rulon, C.J.

Reversed and remanded.

Before RULON, C.J., MALONE and HILL, JJ.

The State appeals the district court's refusal to permit retrial on defendant Wendy DuMars' drug-related offenses after this court reversed the defendant's convictions on the basis of cumulative trial error and remanded the case for new trial in State v. DuMars, 33 Kan. App. 2d 735, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (DuMars I). The State contends the district court disregarded this court's mandate and that double jeopardy did not bar retrial of the defendant. The defendant responds that prosecution for the drug offenses is moot and the district court properly dismissed the charges on either double jeopardy or due process grounds. We reverse and remand for further proceedings.

The defendant was convicted by a jury of attempted manufacture of methamphetamine, two counts of possession of drug manufacturing paraphernalia, possession of methamphetamine, possession of marijuana, three counts of child endangerment, obstruction of official duty, and criminal use of a weapon. At trial, the defendant requested a mistrial on the basis of improperly admitted and prejudicial hearsay evidence. The district court denied the requested mistrial. The defendant renewed her argument in posttrial motions for judgment of acquittal and new trial, which were denied.

The defendant appealed her convictions for attempted manufacture of methamphetamine and possession of drug manufacturing paraphernalia and one of the convictions for child endangerment. This court concluded the defendant's trial had been prejudiced by cumulative errors involving the admission of hearsay evidence and multiple instances of prosecutorial misconduct. With respect to the prosecutorial misconduct, specifically, this court noted: (1) the prosecution elicited hearsay from witnesses on two occasions; (2) improperly created a negative inference from the defendant's invocation of her right to remain silent post-Miranda warnings; (3) undermined the weight the jury might have placed in the instruction requiring jury unanimity; and (4) misstated facts in closing arguments. DuMars I, 33 Kan. App. 2d at 745-50.

Due to the deliberate and repeated nature of the prosecutorial misconduct, this court concluded the errors collectively worked to deny the defendant a fair trial. We further concluded the State had failed to present sufficient evidence to support the one child endangerment conviction challenged ...

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