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.
Listing of legally correct factors supporting an inference of
premeditation in a jury instruction on premeditation is not
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.
"constitutional nullity" argument raised for the
first time on appeal need not be considered on its merits.
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
from Sedgwick District Court; James R. Fleetwood and Joseph
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.
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.
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.
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.
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.
and Procedural Background
facts of Wright's crimes are irrelevant to his purely
legal arguments and thus will not be recited here.
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.
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.
appellate lawyer then filed a motion seeking to have a
district judge other than Judge Wilbert assigned on remand.
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."
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.
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.
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
1. A less-than-35-day continuance would have been granted and
charged to the State, and the case would have been brought to