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State v. Wright

Supreme Court of Kansas

February 16, 2018

State of Kansas, Appellee,
Kristofer J. Wright, Appellant.


         1. On the facts of this case, the denial of defendant's right to be present when a continuance was requested by defense counsel against the defendant's wishes was not reversible error. Nor was any error arising from his counsel's later inability to argue in favor of the defendant's pro se motion to dismiss for violation of the speedy trial statute or any error from the prosecution's failure to bring the defendant to trial within 90 days of arraignment reversible.

         2. Listing of legally correct factors supporting an inference of premeditation in a jury instruction on premeditation is not error.

         3. A prosecutor's misstatement of law during a jury instructions conference does not require reversal of a defendant's convictions when the record does not demonstrate that the misstatement influenced the judge and when the instruction language advocated for by the prosecutor correctly states the law.

         4. A "constitutional nullity" argument raised for the first time on appeal need not be considered on its merits.

         5. Under K.S.A. 2016 Supp. 21-5202(h), a criminal defendant's intent is subject to proof by circumstantial evidence. Specifically, a defendant need not testify to be convicted.

         Appeal from Sedgwick District Court; James R. Fleetwood and Joseph Bribiesca, judges.

          Krystle Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P. Whalen, of the same firm, was with her on the briefs for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


          Beier, J.

         This is defendant Kristofer J. Wright's direct appeal from his conviction for first-degree premeditated murder and conspiracy to commit murder. We previously issued a decision remanding the case for an evidentiary hearing in district court to establish a record on whether a violation of Wright's right to be present at a continuance hearing caused reversible harm. State v. Wright, 305 Kan. 1176, 390 P.3d 899 (2017). The hearing has now been conducted; we retained appellate jurisdiction.

         Having evaluated the results of the hearing on remand, we hold that there was no reversible error resulting from the violation of Wright's right to be present, from any related allegation of error based on his lawyer's later failure to argue in favor of dismissal for violation of the speedy trial statute, or from the prosecution's failure to bring Wright to trial within 90 days of his arraignment.

         We also have reviewed Wright's remaining appellate challenges to his convictions, one of which deals with the content of the jury instruction on premeditation, one of which addresses the prosecutor's erroneous statement about that content during the instructions conference with the district judge, and one of which challenges the content of the instruction on intent. None of these challenges requires reversal.

         Factual and Procedural Background

         The facts of Wright's crimes are irrelevant to his purely legal arguments and thus will not be recited here.

         Our earlier decision recited the procedural history necessary to an understanding of Wright's appellate claim that his right to be present at all critical stages of the prosecution against him had been violated. Of course, our remand continued the development of the procedural history on that claim, and the following further recitation provides necessary context for our ultimate disposition.

         Immediately after issuance of our earlier decision, the State filed a motion for rehearing or modification. Before that motion could be ruled upon, Judge Warren M. Wilbert, the district judge who had presided over the docket call at which Wright's counsel, Timothy A. Frieden, successfully sought the continuance Wright did not want, telephoned and sent a letter to this court, attempting to explain what was likely to have occurred when the continuance was granted. The court filed Judge Wilbert's letter with the Clerk of the Appellate Courts, and the parties were notified of Judge Wilbert's efforts to contact the court.

         Wright's appellate lawyer then filed a motion seeking to have a district judge other than Judge Wilbert assigned on remand.

         By order dated May 26, 2017, this court denied the State's motion for rehearing or modification and granted Wright's motion to have a different judge assigned to conduct the evidentiary hearing on remand. This court's order also gave further, more explicit instructions for the hearing and its aftermath, stating:

"We emphasize that the issue before this court is whether Wright's presence would have made any difference in the decision to grant the continuance. In order to arrive at findings on this question, the district judge assigned by Chief Judge [James] Fleetwood must give both Wright and his lawyer on the one hand and the State on the other hand an opportunity for an on-the-record, evidentiary hearing.
"After that hearing is held, the district judge must produce a journal entry containing his or her factual findings. That journal entry must be added to the appellate record before us in this case. Neither a telephone call nor a letter to any member of the court or to the appellate clerk will be sufficient for the judge to discharge his or her duty under this order or under our [earlier] opinion.
"A transcript of any hearing held on the issue also must be produced and added to the appellate record.
"When both the journal entry and the transcript of any hearing have been added to the appellate record, counsel for Wright and for the State shall file a joint notice with the appellate clerk that the case is ready for further appellate review by this court. No further briefing or oral argument will be permitted."

         On October 5, 2017, the parties filed the required joint notice. Chief Judge Fleetwood had assigned himself to conduct the evidentiary hearing, which was held on August 8, 2017. Wright, Frieden, two prosecutors, and Judge Wilbert testified at the hearing.

         As of the time of the August 19, 2013, grant of the continuance for which Wright was not present, the State still had 35 of its 90 statutory days to bring the defendant to trial. Instead, trial did not commence until the following February-after intervening, unchallenged events further delayed it beyond its second setting of October 21, 2013.

         The witnesses at the evidentiary hearing mentioned five possibilities for what would have occurred on the day Frieden obtained the continuance had Wright been present to voice his objection:

1. A less-than-35-day continuance would have been granted and charged to the State, and the case would have been brought to ...

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