State v. Dupree

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,518

STATE OF KANSAS,
Appellee,

v.

NICHOLAS L. DUPREE,
Appellant.

SYLLABUS BY THE COURT

1.
The State bears the responsibility to ensure a defendant is afforded a speedy trial
in compliance with K.S.A. 22-3402; a defendant does not need to take any affirmative
action to ensure a speedy trial. Arraignment triggers the State's obligation to bring a
defendant to trial within the statutory limits.

2.
Under the plain language of K.S.A. 22-3402, a continuance resulting from a
defendant's request stays the running of the statutory speedy trial period. When the
request is made by defense counsel, the request for continuance is attributable to the
defendant unless the defendant timely voices an objection. Because a defendant's
disagreement matters in a statutory speedy trial analysis, a defendant must have an
opportunity to be present to express that disagreement.

3.
Under K.S.A. 2014 Supp. 22-3402(g), the legislature, which created the statutory
right to speedy trial, has decided to eliminate the remedy for its violation in certain

1
circumstances. When considering if such a change should retrospectively apply, courts
must consider whether retrospective application of legislation will affect vested or
substantive rights.

4.
A vested right is one so fixed that it is not dependent on any future act,
contingency, or decision to make it more secure. Three factors assist in determining if a
right is vested: (1) the nature of the rights at stake (e.g., procedural, substantive,
remedial), (2) how the rights were affected (e.g., were the rights partially or completely
abolished by the legislation; was any substitute remedy provided), and (3) the nature and
strength of the public interest furthered by the legislation.

5.
K.S.A. 2014 Supp. 22-3402(g) does not create a vested right to dismissal; it is
procedural and retroactively applies to an appellant seeking reversal based on an alleged
statutory speedy trial violation.

6.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution applies to the State's privilege to strike prospective jurors through
peremptory challenges. An appellate court utilizes a three-step analysis in recognition of
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when
considering a challenge that the State exercised its peremptory strikes based on
purposeful racial discrimination. First, the party challenging the strike must make a prima
facie showing that the other party exercised a peremptory challenge on the basis of race.
Second, if a prima facie case is established, the burden shifts to the party exercising the
strike to articulate a race-neutral reason for striking the prospective juror. This reason

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must be facially valid, but it does not need to be persuasive or plausible. Third, the trial
court must determine whether the objecting party has carried the burden of proving
purposeful discrimination.

7.
To preserve an evidentiary issue for appellate review, the complaining party must
have lodged a timely and specific objection at trial. Even when the district court rules on
the admissibility of evidence before trial, a party must still make a timely objection at
trial before the admission of the evidence because the unfolding of a case may require a
reevaluation of the reasons for the initial ruling.

8.
Photographs of the extent, nature, and number of wounds are usually relevant in
murder trials.

9.
Cumulative trial errors can require the reversal of a conviction if the totality of the
circumstances substantially prejudiced the defendant and resulted in an unfair trial. A
cumulative error issue does not arise, however, if an appellate court concludes none of
appellant's claims of error have merit.

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed April 8, 2016.
Affirmed.

Kristen Patty, of Wichita, argued the cause and was on the brief 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.

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The opinion of the court was delivered by

LUCKERT, J.: On the evening of December 14, 2011, in Wichita, a group of four
men carried out a burglary of a home, stealing televisions among other things. In the
process, one of the men murdered Markez Phillips, a young man who was in the
residence. The four men were eventually identified as Reginald Dupree, Daniel Dupree,
Malek Brown, and Francis Dupree.

The instant defendant, Nicholas Dupree, was also quickly linked to the crime. The
State's theory at trial was that he was a fifth member of the group and, as stated by one
witness, the "mastermind." A jury accepted the State's theory and convicted Dupree of
multiple crimes, including felony murder.

Dupree raises five challenges in this direct appeal, none of which requires the
reversal of his convictions. His statutory speedy trial claim is foreclosed by our recent
decision in State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015). Dupree's Batson
challenge is unpersuasive, and he failed to adequately preserve his appellate challenge to
the voluntariness of an admission made during a custodial interview. Additionally, we
conclude the district court did not abuse its discretion in admitting autopsy and crime
scene photos. Finally, we find no cumulative error in this case. We, therefore, affirm
Dupree's convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

Just before Phillips was murdered, he was watching a movie with his girlfriend
Regina Stuart while Stuart cared for her infant nephew at her mother's house. The couple

4
heard a knock, and Phillips got up from the couch to answer the door. Stuart heard him
ask who it was before two men tried to push the door open. She watched from the living
room as Phillips began to fight the men. Then she heard what sounded like a firecracker
and saw Phillips fall to the ground. He never got up.

Two men she had never seen before walked towards her. One pointed a black
handgun at her and asked for her cell phone, which she gave him. As she pleaded for her
life, they asked her where the safe was; her family did not have a safe. The men then
walked Stuart at gunpoint to her mother's room, which the men ravaged, again
demanding to know the location of a safe. After the men searched the house in vain for
the safe, all the while threatening to kill Stuart, Stuart told them to take the televisions.

The men then forced Stuart to lie down on the living room floor next to her
nephew. One of the men made a phone call for a truck so they could load the televisions.
Shortly thereafter, another man came into the house and said, "You weren't supposed to
kill nobody." Stuart recognized the man as Daniel Dupree, whom she had met through
her sister. Stuart's sister had recently ended a relationship with a man related to Daniel—
Nicholas Dupree. The men removed three televisions from the home while Phillips lay
bleeding on the floor.

Later that night, Phillips died in the hospital as a result of the .45 caliber gunshot
wound to his head.

Nicholas Dupree's name came up quickly in the investigation. Stuart initially
suspected Dupree's involvement for two reasons. First, he had been repeatedly harassing
her sister since their breakup. Apparently, Dupree believed the infant child was his, and
he had been angry since Stuart's sister told him the child was not. Second, none of the

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other men Stuart saw that night had ever been to her house. Yet, they seemed to know
how to best gain access and where to look for things. Dupree, unlike the men in the house
on that December evening, had been in the house numerous times.

Stuart also looked at photo arrays, and she quickly identified Daniel. She was also
able to identify Malek Brown as the man who shot Phillips and Reginald Dupree as the
man who accompanied Brown into the house.

In the hours of the night following the crime, Stuart's sister received multiple
restricted calls to her cell phone and two unrestricted calls that displayed as coming from
Dupree. She answered one of the restricted calls and recognized Dupree's voice. He told
her: "Just like that slob nigga just got done, you and your boyfriend about to get done."
He also texted her twice, saying, "I hope your kids aren't at home," and, "Where are you
at?" Stuart's family told the case detective about the threats. Dupree would later admit to
investigators, and also testify at trial, that he made those statements.

After Dupree's arrest, detectives interviewed him. He denied any involvement in
the burglary and murder, but he did admit to calling Stuart's sister multiple times that
night and threatening her.

Detectives also spoke with Marjorielle Evans, Daniel's girlfriend. After some
hesitation, she told detectives what she knew, and she testified accordingly at trial. Evans
lived with her kids, her mom, Daniel, Nicholas Dupree, and her brother and sister. Her
room was downstairs, as was Dupree's. The day before the crime, she overheard Dupree
talking to Brown about committing a burglary at the Stuart house. When Brown asked
what was in the house, Dupree listed televisions and an Xbox. Evans provided

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investigators with the names of the five men involved in the crime, and all were
eventually taken into custody.

Investigators also discovered that after hearing about Phillips' murder, Evans got
into a conversation with Stuart on Facebook about the crime. Evans wrote that Dupree
showed the others where to go and told them to get the televisions. She said Phillips was
in the wrong place at the wrong time. She said Dupree "was the mastermind of this whole
thing," and she hoped they would catch Brown, who "had no reason to kill [Phillips]."

The jury also viewed video captured by a security camera located on a school
district maintenance shed near the Stuart home. The images showed an SUV pulling up a
short distance from the Stuart home and three men exiting. Reginald and Brown
proceeded to the house; the other—Francis—walked up the street. The SUV, driven by
Daniel, left the house, but it soon returned. Police officers located an SUV that belonged
to Brown's girlfriend and matched the one on the video. Brown's girlfriend testified
Brown had used her SUV the night of the murder. She also testified Evans told her, the
day after Phillips' murder, that Brown had shot someone.

Notably, the jury heard that one shell casing found on the scene of the crime and
one shell casing found in the backseat of the SUV were both fired from the same Hi-Point
.45 caliber handgun. A bullet fragment taken from Phillips' head was also fired from that
same gun.

Dupree testified at trial in his defense. He told jurors he knew nothing about the
crime and had nothing to do with it. According to Dupree, he first learned about Phillips'
murder when his half-sister called and told him. (She denied doing so.) Dupree said he
felt bad Phillips was murdered because Phillips was his friend—and indeed they had

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lived together for a few months. While he admitted that he threatened Stuart's sister and
called Phillips a "slob nigga" (he could not explain why he would refer to his friend in
such a derogatory way), he said he made the threat (1) because Stuart's sister's boyfriend
threatened him first and (2) because he was angry that he was not allowed to see the child
he thought was his son. Nevertheless, for reasons Dupree could not explain, none of the
calls about which he testified showed up in his phone records.

After trial, the jury found Dupree guilty on all charged counts: first-degree felony
murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated
endangering a child, aggravated assault, and criminal threat. The district court later
sentenced Dupree to life plus 142 months, and it denied his motion for a departure.
Dupree timely filed a direct appeal to this court, which has jurisdiction under K.S.A.
2015 Supp. 22-3601(b)(3). Additional facts will be provided as relevant to the analysis of
Dupree's appellate arguments.

ANALYSIS

ISSUE 1: Dupree's convictions are not reversible under the speedy trial statute.

A defendant can assert a speedy trial claim in two ways—one statutory and one
constitutional. See, e.g., State v. Smallwood, 264 Kan. 69, 74-76, 955 P.2d 1209 (1998)
(analyzing a statutory speedy trial challenge differently than a constitutional challenge).
Here, Dupree only presents a statutory challenge under K.S.A. 22-3402 and because he
did not allege a constitutional speedy trial violation, he has abandoned the constitutional
argument. See State v. Williams, 298 Kan. 1075, 1083-84, 319 P.3d 528 (2014) (issues
not argued or briefed are abandoned).

8
 Dupree's statutory argument presents a question of law subject to unlimited
review. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009) ("[T]he computation of
days to be assessed against the so-called speedy trial clock—requires some level of
statutory interpretation and thus is reviewed de novo."); State v. Adams, 283 Kan. 365,
368, 153 P.3d 512 (2007) (same).

We begin with the statutory language upon which Dupree bases his claim. Under
K.S.A. 22-3402(1):

"If any person charged with a crime and held in jail solely by reason thereof shall not be
brought to trial within 90 days after such person's arraignment on the charge, such person
shall be entitled to be discharged from further liability to be tried for the crime charged,
unless the delay shall happen as a result of the application or fault of the defendant . . . ."
(Emphasis added.)

The State bears the responsibility to ensure a defendant is afforded a speedy trial
in compliance with K.S.A. 22-3402; a defendant does not need to take any affirmative
action to ensure a speedy trial. Adams, 283 Kan. at 369. Arraignment triggers the State's
obligation to bring a defendant to trial within the statutory limits. State v. Sievers, 299
Kan. 305, 307, 323 P.3d 170 (2014). Dupree's arraignment occurred on February 6, 2012.
So the State had 90 days from that date to bring Dupree to trial. The original date for
Dupree's trial was April 2, 2012, which amounted to a period of 56 days chargeable to the
State. From that point, except a period of 14 days, all continuance requests came from the
defense.

Under the plain language of this statute, a continuance resulting from a defense
request stays the statutory speedy trial calculations. Vaughn, 288 Kan. at 151. Dupree
does not dispute that his defense attorney requested continuances, and, generally,

9
"defense counsel's actions are attributable to the defendant." State v. Bloom, 273 Kan.
291, 310, 44 P.3d 305 (2002).

One exception to this general rule is relevant in Dupree's case: We have
recognized for speedy trial purposes that an attorney cannot continue a case over a
defendant's objection. See State v. Hines, 269 Kan. 698, 704, 7 P.3d 1237 (2000); see
also Vaughn, 288 Kan. at 144 (defense counsel's actions attributable to defendant "unless
the defendant timely voices" disagreement); State v. Arrocha, 30 Kan. App. 2d 120, 126,
39 P.3d 101, rev. denied 273 Kan. 1037 (2002) (Essentially, Hines created "a unique
exception [to the rule attributing defense counsel's actions to defendant] for
circumstances when defense counsel and the defendant openly disagree about setting a
trial date beyond the statutory time limit."). Dupree claims he was not consulted about the
continuances and never acquiesced to any continuance.

In addition, we recently confirmed a defendant must have an opportunity to be
present to express disagreement with a continuance because a defendant's disagreement
matters in the statutory speedy trial analysis. See State v. Brownlee, 302 Kan. 491, 508,
354 P.3d 525 (2015) (agreeing that a defendant should be present at a hearing on a
defense motion to continue); see also K.S.A. 2014 Supp. 22-3208(7) (stating defendant's
right to be present at a motion hearing); State v. Taylor, No. 104,455, 2011 WL 3795481,
at *4 (Kan. App. 2011) (unpublished opinion) (discussing Hines and Arrocha and
recognizing that "[a] criminal defendant must be afforded a reasonable opportunity to
object to a continuance affecting his or her speedy trial rights"). Accordingly, Dupree's
claim, if true, could indicate his right to a speedy trial was violated because he never
personally waived his statutory right.

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 Even if defense counsel did not consult with Dupree, Dupree may not be entitled
to relief under the majority holding in Brownlee, which interpreted and applied 2012
amendments to K.S.A 22-3402. As of July 1, 2012:

"If a defendant, or defendant's attorney in consultation with the defendant,
requests a delay and such delay is granted, the delay shall be charged to the defendant
regardless of the reasons for making the request, unless there is prosecutorial misconduct
related to such delay. If a delay is initially attributed to the defendant, but is subsequently
charged to the state for any reason, such delay shall not be considered against the state
under subsection[] (a) . . . and shall not be used as a ground for dismissing a case or for
reversing a conviction unless not considering such delay would result in a violation of the
constitutional right to a speedy trial or there is prosecutorial misconduct related to such
delay." (Emphasis added.) K.S.A. 2014 Supp. 22-3402(g).

In Brownlee, the members of this court disagreed about whether the first sentence
of subsection (g) sets up a precondition for application of the second sentence. The
dissenters concluded the first sentence defines and limits the circumstances under which
the second sentence can operate. 302 Kan. at 526 (Luckert, J., dissenting; Johnson, J.,
joining). Under that view, Dupree would be entitled to relief because he did not request,
and his attorney did not consult with him before requesting, the delays at issue.

That view did not prevail, however, and a majority of this court held the two
sentences in subsection (g) are not "contingent upon each other." Rather, "[t]he second
sentence is much broader in its application. It involves situations where 'a delay is
initially attributed to the defendant[ ] but is subsequently charged to the state for any
reason . . . .' (Emphases added.) K.S.A. 2012 Supp. 22-3402(g)." 302 Kan. at 510. That
holding, if it retroactively applies to Dupree's case, controls—because Dupree does not
dispute the State's assertion that the language of the second sentence of subsection (g)
means he is not entitled to dismissal. Indeed, the sentence fits: The district court initially

11
attributed the delays to Dupree and, even if further investigation into Dupree's claim
resulted in those delays being charged to the State, the second sentence of K.S.A. 2014
Supp. 22-3402(g) leaves us with no grounds to reverse Dupree's convictions and dismiss
the case against him. "Under subsection (g), the legislature, which created the statutory
right [to speedy trial], has decided to eliminate the remedy for its violation in certain
circumstances." Brownlee, 302 Kan. at 511.

The question remains, however, whether the newly amended version of K.S.A. 22-
3402 applies to this case. At Dupree's February 6, 2012, arraignment, K.S.A. 22-3402 did
not contain subsection (g). Subsection (g) first appeared in K.S.A. 2012 Supp. 22-3402,
which became effective July 1, 2012. We recently held in Brownlee that "K.S.A. 2012
Supp. 22-3402(g) is a procedural provision, and it can be retroactively applied to [a
defendant's] case." 302 Kan. at 509-10.

In an attempt to distinguish his case from Brownlee, Dupree argued in a letter of
additional authority that, unlike Brownlee, the time limit for his statutory speedy trial
right had expired prior to the effective date of K.S.A. 2014 Supp. 22-3402(g). In
Brownlee, the 90-day time limit expired on December 11, 2012—after the July 1, 2012,
date on which subsection (g) became effective. Here, the State's 90 days expired on May
6, 2012—before the July 1, 2012, effective date. As discussed below, that distinction
does not matter because Dupree did not have a vested right to dismissal of charges as of
May 6, 2012.

Essentially, Dupree contends that the expiration of the statutory speedy trial time
limit provided him with a "vested" right to dismissal, meaning he was entitled to
dismissal and subsection (g) and Brownlee's interpretation of it could not retroactively
apply to his case. Certainly, "[e]ven where the legislative intent is clear, courts must still

12
consider whether retrospective application of legislation will affect vested or substantive
rights." (Emphasis added.) Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-21, 73
P.3d 753 (2003).

A vested right is one "so fixed that it is not dependent on any future act,
contingency or decision to make it more secure." Board of Greenwood County Comm'rs.
v. Nadel, 228 Kan. 469, 474, 618 P.2d 778 (1980). Initially, we do not view Dupree's
speedy trial claim as fitting the definition of a vested right because a defendant ordinarily
can only obtain relief under the speedy trial statute by (1) asserting the claim at the
district court level and winning or (2) losing the claim at the district court level,
appealing, and then persuading a future appellate court to reverse the district court's
findings of fact. See State v. Crawford, 46 Kan. App. 2d 401, 408-09, 262 P.3d 1070
(2011) (recognizing that a speedy trial claim is waived if not raised before the district
court). But see State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007) (court sua sponte
raised speedy trial issue on appeal under the unusual circumstances of the case). In other
words, dismissal of Dupree's case depended on both his own future acts and other
contingencies.

Although Dupree's claim does not seem to fit the general definition of a vested
right, and even though there are no similar exceptional circumstances in this case, we do
not reject his argument out of hand in light of Adams. Also, further consideration seems
warranted since we have recognized that the concept of vested rights is inherently
difficult to define and apply. See Owen Lumber, 276 Kan. at 221 (citing Resolution Trust
Corp. v. Fleischer, 257 Kan. 360, 364-65, 892 P.2d 497 [1995], and discussing the
difficulty in defining a "vested right" and applying the concept). Likewise, in Owen
Lumber, we set out three factors to be considered in determining whether a statute deals
with a vested right:

13
 "'(1) the nature of the rights at stake (e.g., procedural, substantive, remedial), (2) how the
rights were affected (e.g., were the rights partially or completely abolished by the
legislation; was any substitute remedy provided), and (3) the nature and strength of the
public interest furthered by the legislation.'" 276 Kan. at 222.

Typically, the concept of vested rights has been discussed by this court in the
context of civil cases, such as Owen Lumber, which involved legislation that sought to
retroactively eradicate a mechanics lien. 276 Kan. at 227-28. Although less frequently, at
least some discussion of vested rights has appeared in criminal cases. See, e.g., State v.
Hunt, 198 Kan. 222, 226-27, 424 P.2d 571 (1967); State v. Montgomery, 34 Kan. App. 2d
511, 515-16, 120 P.3d 1151 (2005); see also State v. McDaniels, 237 Kan. 767, 770, 703
P.2d 789 (1985) ("'The right to an appeal is neither a vested nor constitutional right, but is
strictly statutory in nature. It may be limited by the legislature to any class or classes of
cases, or in any manner, or it may be withdrawn completely.'").

One case from the Court of Appeals, In re Care & Treatment of Hunt, 32 Kan.
App. 2d 344, 82 P.3d 861 (2004), presented an issue similar to Dupree's, although it arose
as a civil matter in the context of the Sexually Violent Predator Act (SVPA). In re Hunt
involved individuals committed to the SVPA treatment program who argued they were
entitled to discharge because their trials did not begin within 60 days of a probable cause
hearing, as required by statute. Prior caselaw had labeled the 60-day statutory limit as
jurisdictional; but in response to that caselaw, the legislature amended a statute to make
clear that the 60-day period was not jurisdictional and that violation of the 60-day period
should not result in discharge. Like here, the question becomes whether the amendment
retroactively applied. The In re Hunt court applied the Owen Lumber factors to determine
whether the legislature sought to retroactively remove an individual's vested right to
discharge. 32 Kan. App. 2d at 362.

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 On the first Owen Lumber factor—the nature of the rights at stake (procedural,
substantive, or remedial), In re Hunt cited precedent from this court noting that the 60-
day limit was similar to a statute of limitations or criminal speedy trial provision. 32 Kan.
App. 2d at 363 (citing In re Care & Treatment of Searcy, 274 Kan. 130, 142, 49 P.3d 1
[2002] ["The mandatory language of K.S.A. 2001 Supp. 59-29a06 is analogous to the
statutory right to speedy trial in criminal cases"]). Because a statute of limitations can be
waived, lost, or extended by statute, it does not typically create a vested right. In re Hunt,
32 Kan. App. 2d at 363-64. But see State v. Noah, 246 Kan. 291, 294-95, 788 P.2d 257
(1990) (noting procedural nature of statute of limitations but once expired the limitations
cutoff provides a vested and complete defense; holding legislature cannot amend a
criminal statute to lengthen the period after it has expired). That is in contrast to a statute
of repose, which is substantive because it "abolishes the cause of action after the passage
of time even though the cause of action may not have yet accrued." Harding v. K.C. Wall
Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992); see also Owen Lumber, 276
Kan. at 223 (noting distinction between statute of limitations and statute of repose); In re
Hunt, 32 Kan. App. 2d at 364 (same).

The In re Hunt court found this first factor to be in equipoise. It noted that prior
cases had treated the 60-day limit as jurisdictional, which was more like a substantive
statute of repose. The court also recognized, however, that the 60-day limit could be
waived and extended, much like the more procedural statute of limitations. 32 Kan. App.
2d at 364.

Here, in contrast, the speedy trial statute weighs heavily on the procedural side.
Indeed, rather than establishing a new substantive right, the speedy trial statute is merely
a procedure that works to protect an existing substantive right: "The purpose of K.S.A.

15
22-3402 is to implement the accused's constitutional right to a speedy trial. It is the
State's obligation to insure that an accused is provided a speedy trial." State v. Green, 252
Kan. 548, 550, 847 P.2d 1208 (1993). The speedy trial statute is not a "substantive
criminal law, which either defines a crime or involves the length or type of punishment."
State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). Rather, the speedy trial
statute is procedural because it "provides or regulates the steps by which one who
violates a criminal statute is punished." State v. Hutchison, 228 Kan. 279, 287, 615 P.2d
138 (1980); see Easterwood v. State, 273 Kan. 361, 372, 44 P.3d 1209 (2002).

The speedy trial statute puts an obligation on the State to bring a person to trial
within 90 days; it regulates how the State goes about punishing a person for violating a
criminal statute. Because the legislature enacted the speedy trial statute as a procedural
mechanism to protect a substantive constitutional right, the statutory speedy trial time
limit has long been subject to a number of exceptions: It can be extended as a result of a
defendant's delay, for a defendant's incompetence, because of the unavailability of
material evidence, because of a crowded court docket, or as a result of actions on appeal.
See K.S.A. 22-3402(2), (5). Thus, we conclude the first factor weighs in favor of
retroactive application of a nonvested right. See State v. Williams, 291 Kan. 554, 557,
244 P.3d 667 (2010) (procedural rule typically operates retroactively unless it
prejudicially affects the substantive rights of a party), overruled in part on other grounds
State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015).

As to the second Owen Lumber factor—how the right was affected— the In re
Hunt court noted that a person facing commitment had a complete defense prior to the
SVPA statute amendments. There, retroactively applying the statute completely abolished
the defense without providing any substitute remedy. 32 Kan. App. 2d at 364; see also
Noah, 246 Kan. at 294-95 (criminal statute of limitations, once expired, cannot be

16
retroactively lengthened because it abolishes a complete defense). Here, for two reasons,
the 2012 amendments to the speedy trial statute do not affect the right as severely as the
In re Hunt statute.

First, K.S.A. 2014 Supp. 22-3402(g) only removes the remedy for a statutory
speedy trial violation and does so in only some circumstances, stating: "If a delay is
initially attributed to the defendant, but is subsequently charged to the state for any
reason, such delay . . . shall not be used as a ground for dismissing a case or for reversing
a conviction." Granted, removal of the remedy in those limited circumstances undercuts
the statutory right, but "the general rule is that there are no vested rights in a particular
remedy or method of procedure." Owen Lumber, 276 Kan. at 222; see also McDaniels,
237 Kan. at 770 (right to appeal is neither vested nor constitutional). Second, the statute
does not affect the statutory remedy in circumstances not covered by subsection (g) and
preserves a remedy even under subsection (g) for a constitutional speedy trial violation,
which we have said is the ultimate objective of the statute, or if there has been
prosecutorial misconduct. K.S.A. 2014 Supp. 22-3402(g) (no dismissal or reversal of
conviction on appeal "unless not considering such delay would result in a violation of the
constitutional right to a speedy trial or there is prosecutorial misconduct related to such
delay"). Unlike in In re Hunt, the statutory speedy trial defense is not completely
abolished.

The third Owen Lumber factor—the nature and strength of the public interest
furthered by the legislation—weighed heavily in favor of retroactivity in In re Hunt. "The
public has an enormous interest in seeing that persons who qualify as sexually violent
predators are removed from society and treated in appropriate facilities." Ultimately, the
In re Hunt court found that the factors (particularly the public's interest) tipped the scale

17
towards retroactive application, meaning the SVPA committees did not have a vested
right to discharge. 32 Kan. App. 2d at 364-65.

Here, too, we find the third factor weighs heavily in favor of finding a nonvested
right. The legislature restricted the defendant's remedy only under limited circumstances:
when an initial decision attributing a delay to the defendant is reversed and charged to the
State. Whether this reversal occurs at the district court or appellate level, it likely happens
due to some factual or legal error. Notwithstanding the speedy trial statute as it was
worded before the amendments at issue, in other contexts, only rarely does such a judicial
error result in the outright dismissal of a case.

Rather, the Kansas Legislature has generally directed that "[a]t every stage of the
proceeding, the court must disregard all errors and defects that do not affect any party's
substantial rights." K.S.A. 2014 Supp. 60-261; see K.S.A. 60-2105 (criminal conviction
typically will be reversed only when an error "ha[s] prejudicially affected the substantial
rights of the party complaining"); State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012) (test under 60-261 is whether "there is a
reasonable probability that the error did or will affect the outcome of the trial in light of
the entire record"). Thus, the previous language of the speedy trial statute created an
extraordinary remedy for judicial error somewhat at odds with general legislative policy.
Subsection (g) merely limits the reach of that extraordinary remedy. Indeed, subsection
(g) specifically preserves the remedy for a constitutional speedy trial violation, i.e., when
substantial rights are prejudiced.

Properly attributing the delay leads to a correct application of the speedy trial
statute and does not affect any party's substantial rights. See 2014 Supp. K.S.A. 60-261.
The current statute still serves its fundamental purpose of expeditiously resolving

18
criminal matters because the State still has an obligation to bring a defendant to trial
within the time frames of statutory speedy trial. To be sure, if the district court correctly
attributes delays and the State fails to bring a defendant to trial within the statutory limits,
the district court must dismiss the case. The amendment furthers the social interest of
seeing that those accused of crimes are both prosecuted and given a fair trial by limiting
the extraordinary remedy of dismissal and making it inapplicable to judicial errors that
would otherwise not affect substantial rights. See, e.g., K.S.A. 2014 Supp. 60-261. In
other words, the third factor suggests Dupree did not have a vested right.

Thus, the speedy trial statute does not create a vested right; K.S.A. 2014 Supp. 22-
3402(g) is procedural and retroactively applies to Dupree's case. Because we cannot grant
Dupree any relief for his alleged statutory speedy trial claim, we do not decide whether
the district court was wrong to attribute the delays against Dupree given that Dupree does
not suggest his constitutional rights were violated or that the delays resulted from
prosecutorial misconduct. See K.S.A. 2014 Supp. 22-3402(g); Brownlee, 302 Kan. at
511.

ISSUE 2: The district court properly overruled Dupree's Batson challenge.

The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution "applies to the State's privilege to strike prospective jurors through
peremptory challenges." State v. Kettler, 299 Kan. 448, 461, 325 P.3d 1075 (2014). We
use a three-step analysis in recognition of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
1712, 90 L. Ed. 2d 69 (1986), when considering a challenge that the State exercised its
peremptory strikes based on purposeful racial discrimination. See Kettler, 299 Kan. at
461; State v. Hood, 242 Kan. 115, 122-23, 744 P.2d 816 (1987). A distinct standard of
review governs each step of the analysis:

19
 "First, the party challenging the strike must make a prima facie showing that the
other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step. [Citation omitted.]

"Second, if a prima facie case is established, the burden shifts to the party
exercising the strike to articulate a race-neutral reason for striking the prospective juror.
This reason must be facially valid, but it does not need to be persuasive or plausible. The
reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
the explanation. The opponent of the strike continues to bear the burden of persuasion.
[Citation omitted.]

"Third, the trial court must determine whether the objecting party has carried the
burden of proving purposeful discrimination. This step hinges on credibility
determinations. '[U]sually there is limited evidence on the issue, and the best evidence is
often the demeanor of the party exercising the challenge. As such, it falls within the trial
court's province to decide, and that decision is reviewed under an abuse of discretion
standard.' [Citations omitted.]" Kettler, 299 Kan. at 461-62.

A district court abuses its discretion when it makes a decision that is based on an error of
law or fact; or when it makes a decision that is otherwise arbitrary, fanciful, or
unreasonable. State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).

The parties here do not contest that there was a prima facie showing that the State
exercised a preemptory challenge on the basis of race. Rather, they focus on whether the
district court (1) erred in finding that the State had articulated a race-neutral reason for
striking two African Americans, D.W. and K.B., and (2) abused its discretion in
concluding that Dupree had not established purposeful discrimination. Neither argument
is persuasive.

20
 Turning first to D.W., the State claimed it struck her because her answers about
felony murder were troubling. During voir dire, the prosecutor spoke about the concept of
felony murder, explaining a person can be guilty of murder even without pulling the
trigger. D.W. said she would have a problem finding someone guilty of murder if he or
she were not the person directly responsible for the murder. But she said she understood
that she would have to follow the law, and she conceded she would not break her oath as
a juror. However, she also told the prosecutor to "[t]ake somebody else" because she
could not "morally and conscientiously" convict someone for felony murder. The next
day, the defense attempted to rehabilitate D.W. Again, D.W. expressed her disapproval of
the concept of felony murder. But she did reiterate that she would follow the law, even if
she did not want to, and would not break her oath.

The State carries a relatively low burden to provide a race-neutral reason for a
strike—the justification must be facially valid, but it need not necessarily be plausible or
persuasive. Kettler, 299 Kan. at 462. Here, our review of the record reveals that the
State's reason was more than facially valid; it was plausible and persuasive. D.W. told the
prosecutor she could not morally convict someone of felony murder. She later told the
defense, reluctantly and somewhat to the contrary, that she would follow the law
regarding felony murder even if she did not agree with it. Regardless of which of these
competing principles D.W. would ultimately follow, we agree that D.W.'s hesitation
provided the State with a race-neutral reason to strike her from the jury panel. Moreover,
the State also struck two other jurors, who were not African American, for the same
reason. See Angelo, 287 Kan. at 274 (a court can consider whether State struck white
potential jurors for the same reason as an African American). Thus, we conclude the
district court did not abuse its discretion in finding no purposeful discrimination as to
D.W.

21
 Turning to K.B., the prosecutor remembered him from a prior case—K.B.'s
girlfriend had been a witness. Additionally, K.B. revealed he was a self-employed co-
owner of a barbershop. When the defense asked if missing work for a week to serve on a
jury would hurt him financially, K.B. replied, "It will be a challenge, but I'll get through
it." Later, the State used a peremptory strike on K.B., resulting in Dupree's Batson
challenge.

The State responded with several race-neutral reasons. First, it noted that after the
conclusion of voir dire, K.B. had contacted the court assistant and disclosed that he
thought he graduated with Dupree or at least had a class with him—something K.B. did
not mention during voir dire. Second, the prosecutor remembered K.B. from the prior
case because K.B. and his girlfriend were evasive as witnesses. Third, the prosecutor
noted that as a self-employed person it would be hard, financially, for K.B. to serve on a
jury trial that was likely to span a week.

Concerned about K.B.'s post-voir dire disclosure that he might know Dupree, the
court called K.B. into chambers. K.B. told the court that it had just occurred to him the
previous night that he might know Dupree. He claimed his knowledge of Dupree would
not make him biased. Before leaving chambers, K.B. added that he also knew two
Wichita police officers. K.B. did not explain why he waited to disclose this information.
Indeed, the panel of potential jurors during voir dire answered questions about both their
knowledge of Dupree and their relationships with police officers.

In response to the State's reasons for its strike, Dupree said he did not remember
K.B. from school, and the defense argued K.B. had been forthcoming. Nonetheless, the
court found K.B. to be less than forthcoming in his answers to voir dire questions. The

22
court also found the State's reasons were race-neutral and that Dupree had not shown
purposeful discrimination.

This left two African Americans on the panel—the defense struck one, and the
other was selected as the alternate juror. Although not determinative, the court can
consider that other members of the same race as the defendant were not struck. Angelo,
287 Kan. at 274.

On appeal, Dupree primarily argues that the district court abused its discretion as
to K.B. by providing its own reason to strike K.B. rather than by accepting the State's
proffered race-neutral reasons. We are not persuaded by Dupree's argument because it is
premised on an unfair reading of the record.

A district court resolves a Batson challenge by ultimately determining if the
attorney exercising the peremptory strike did so for legitimate or discriminatory ends.
Likewise, the decision rests heavily on an assessment of the credibility and demeanor of
the challenging attorney. Appellate courts give significant deference to those sorts of
credibility findings. Angelo, 287 Kan. at 272; see State v. Brooks, 297 Kan. 945, 951, 305
P.3d 634 (2013) ("appellate court[s] will not determine the credibility of witnesses").
Here, one of the prosecutor's race-neutral reasons was that he knew K.B. and believed
him to be evasive and less than forthcoming. Notably, this court has affirmed peremptory
strikes based on lesser reasons like body language and a prosecutor's intuition. Angelo,
287 Kan. at 274-75.

In this case, it so happened that the district court did not have to rely solely on the
prosecutor's subjective beliefs about K.B.'s nature. The district court was able to judge
whether K.B. had been forthcoming during voir dire when he came forward with directly

23
relevant information after voir dire had ended. Contrary to Dupree's claim, the district
court did not generate its own reason when it expressed its concern over K.B.'s
inexplicably delayed disclosure of information. More accurately, the court provided a bit
of explanation why, under the circumstances, it found one of the State's race-neutral
reasons appropriate.

Furthermore, the case Dupree cites, Paulino v. Castro, 371 F.3d 1083 (9th Cir.
2004), to support his argument is distinguishable. There, the defense raised a Batson
challenge but, before the defense could finish explaining the reasons for its challenge, the
district court interrupted with speculation about why the prosecutor exercised peremptory
strikes. The court never gave the prosecutor a chance to explain its strikes, which clearly
contravened the steps of the Batson analysis. See also State v. Knighten, 51 Kan. App. 2d
417, 424, 427, 347 P.3d 1200 (2015) (district court told parties it was "'not asking for a
race, gender or any kind of neutral explanation at this point,'" resolving the matter with
"its own notes and experiences . . . without first requiring the State to produce race-
neutral reasons"). Indeed, the crux of a Batson analysis is whether the State's actual
reason for a strike is discriminatory. So it is error to fail to provide the State with an
opportunity to explain its reason even if the court can come up with a good reason why
the State might have justified the strike. Paulino, 371 F.3d at 1089-90. This simply did
not happen here.

Here, the record is clear that the district court found a prima facie case, asked for
and considered the State's reasons for the strikes, and in light of those reasons ultimately
concluded that Dupree failed to prove purposeful discrimination. The district court did
not abuse its discretion in overruling Dupree's Batson challenges.

24
ISSUE 3: Dupree failed to preserve an issue regarding the voluntariness of his statements
during a postarrest custodial interview.

Next, Dupree argues the district court should have suppressed a statement he made
during a custodial interview after Dupree was first arrested. He specifically focuses on his
admission to making the following statement to Stuart's sister over the phone: "Just like
that slob nigga about got done, you and your boyfriend going to get done."

After a pretrial hearing, the district court concluded this admission was admissible.
On appeal, Dupree argues his admission was involuntary, and thus inadmissible, for two
reasons. First, he claims the interviewing officer deceived him into admitting that he
made the above statement to Stuart's sister. Second, he argues his admission was
involuntary under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643
(2004), and that the State failed to prove otherwise. We conclude Dupree failed to
preserve these arguments for our review because he did not lodge a timely objection to
the evidence regarding his admission before the district court.

Generally, to preserve an evidentiary issue for appellate review, the complaining
party must have lodged a timely and specific objection at trial. K.S.A. 60-404; State v.
Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Even when the district court rules on the
admissibility of evidence pretrial, a party must still make an objection at trial before the
admission of the evidence because the unfolding of a case may require a reevaluation of
the reasons for the initial ruling. State v. Richard, 300 Kan. 715, 720-21, 333 P.3d 179
(2014).

Here, Dupree did not object at any point during the testimony of the interviewing
detective who told the jury that Dupree admitted to having made the phone call
(1) because he was angry and (2) with the understanding that his statement could be taken

25
as a threat. Instead, in a recess following the testimony, Dupree's counsel asserted he had
"two continuing ongoing objections to these statements . . . based on the previous
motions we argued."

Now, on appeal, Dupree claims the district court granted him a continuing
objection during the pretrial ruling on admissibility. However, the record reflects that
Dupree's counsel never requested a continuing objection during the pretrial hearing. The
colloquy following the ruling on voluntariness proceeded as follows:

"[DEFENSE COUNSEL]: And I presume that the Court's going to give me leave to
object at the time when these statements are coming out and state something to the matter
of for the reasons previously argued or something like that?

"THE COURT: I will allow you to make your record to—to the extent that we don't go
back and start arguing what we've already argued here this morning.

"[DEFENSE COUNSEL]: Sure. Understood." (Emphasis added.)

Despite defense counsel's request to make a contemporaneous record during trial
when the statements were admitted into evidence, counsel did not contemporaneously
object during the lengthy direct examination in which the statements came into evidence.
He objected only during a recess after the jury already heard the evidence.

The State is correct that Dupree never lodged a timely objection, which leaves his
argument about voluntariness unpreserved for appeal. See Richard, 300 Kan. at 720-21.

26
ISSUE 4: The district court did not abuse its discretion by admitting photographs.

Dupree next argues the trial court erred in admitting certain photographic exhibits
on the basis that the photographs were gruesome, duplicative, and meant to ignite the
jury's sympathies. Specifically, Dupree challenges the admission of three groups of
photos on appeal: emergency room photos, autopsy photos, and crime scene photos. We
find no error in the admission of the photographic evidence.

At the outset, Dupree concedes that photographs of the extent, nature, and number
of wounds are usually relevant in murder trials. State v. Hickles, 261 Kan. 74, 85, 929
P.2d 141 (1996) (citing State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 [1978]).
Nevertheless, he argues the district court abused its discretion in admitting the photos in
this case. We find no merit in his various arguments.

Dupree first challenges the relevancy of photographs of Phillips' emergency room
treatment. The test for relevancy is whether the evidence has "any tendency in reason to
prove any material fact." K.S.A. 60-401(b); State v. Bowen, 299 Kan. 339, 348, 323 P.3d
853 (2014). This definition requires the evidence to be material and probative. Evidence
is material when the fact it supports is in dispute or in issue in the case. Review for
materiality is de novo. 299 Kan. at 348. Evidence is probative if it has any tendency to
prove any material fact. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013).
Appellate courts review the district court's assessment of the evidence's probative value
under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d
140 (2014).

As to materiality, photographs showing the jury the manner of death are material
in a murder trial. See State v. Backus, 295 Kan. 1003, 1013, 287 P.3d 894 (2012). Here,
the photographs are probative of this material fact in that they show the manner of

27
Phillips' death—a gunshot to his head, and the unfortunately unsuccessful attempt to save
his life. Moreover, it was Dupree who, through cross-examination, suggested that not
enough was done to save Phillips' life. When a defendant discusses an area of evidence
that would otherwise be forbidden the State can respond by presenting evidence in that
formerly forbidden area. See State v. Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013).
So even if the emergency room photographs were for some reason initially irrelevant, the
State here properly presented the photographs to the jury as a rebuttal to Dupree's
suggestion that no one tried to save Phillips.

Based on our de novo review of the record, we hold that the emergency room
photographs were material and that the district court did not abuse its discretion in
weighing the probative nature of the photographs. See Bowen, 299 Kan. at 348.

Dupree next challenges the autopsy photographs. At its core, Dupree's argument
attacks the relevance and the cumulative nature of the photographs.

As to relevance, "photographs which serve to illustrate the nature and extent of the
wounds inflicted are admissible when they corroborate the testimony of witnesses or are
relevant to the testimony of a pathologist as to the cause of death." State v. Verge, 272
Kan. 501, 515, 34 P.3d 449 (2001). In Dupree's trial, the coroner testified about the
gunshot wound to Phillips' head and concluded that it was the cause of his death. The
district court correctly determined the photographs were relevant.

In arguing about the cumulative nature of the autopsy photographs, Dupree
suggests one photograph rather than four was sufficient, noting that the coroner did not
even need to reference some of the photographs. As we explained in Hickles, 261 Kan. at
88: "Cumulative evidence is evidence of the same kind to the same point, and whether it

28
is cumulative is to be determined from its kind and character, rather than its effect." A
district court may in the exercise of discretion refuse to admit cumulative evidence. 261
Kan. at 88; see also State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012) (on
appeal, abuse of discretion standard applies to cumulative error complaint).

Here, each of the photographs corroborated the coroner's testimony by showing
Phillips' body at different angles and distances. As we said in State v. Rodriguez, 295
Kan. 1146, 1158, 289 P.3d 85 (2012), the photographs depicted the "injuries in a way that
[the coroner's] mere words could not. In this way, they had additional relevance. In
addition, they were not repetitious of each other, because each was taken from a different
angle."

Finally, Dupree challenges the crime scene photos and again argues the photos
were cumulative. However, the detective testified that she tried to get a panoramic view
of the kitchen where Phillips was shot "the hard way" with single camera shots. Further,
the photos served to corroborate Stuart's and the detectives' testimony about the
circumstances of Phillips' murder. Verge, 272 Kan. at 515.

Rarely has this court found an abuse of discretion in the admission of
photographic evidence in a murder trial; here too, we conclude the district court did not
abuse its discretion in admitting the photos.

ISSUE 5: The cumulative effect of errors in Dupree's case does not require reversal of his
convictions.

Dupree argues this court must reverse his convictions because multiple trial errors,
considered together, resulted in an unfair trial. Cumulative trial errors can require the
reversal of a conviction if the totality of the circumstances substantially prejudiced the

29
defendant and resulted in an unfair trial. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261
(2012), overruled in part on other grounds State v. King, 297 Kan. 955, 305 P.3d 641
(2013). If there is no error or only a single error, however, there is no error to accumulate
and no basis to reverse a conviction. See State v. Haberlein, 296 Kan. 195, 212, 290 P.3d
640 (2012). We do not find any errors in Dupree's case, however. At most, we assume a
possible violation of the speedy trial statute, although we conclude Dupree does not have
a right to a remedy. Because there is only one assumed error, there are no errors to
accumulate.

Affirmed.

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