State v. Hunter

NOT DESIGNATED FOR PUBLICATION

No. 121,296

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NORRIS M. HUNTER,
Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed February 12,
2021. Affirmed.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., HILL and BUSER, JJ.

PER CURIAM: This is Norris M. Hunter's direct appeal of his convictions of
aggravated robbery, battery, aggravated burglary, and theft. He raises two procedural
errors. Specifically, he claims the trial court erred when it prevented him from calling his
brother to offer limited testimony at the trial. In his second claimed error, Hunter argues
the court erred when it did not dismiss this case based on a speedy trial violation. For his
third claim, he maintains that our sentencing guidelines violate the Kansas Constitution's
guaranty of the right to a jury trial. After reviewing the record, we hold the claimed

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procedural errors are not reversible. In the matter of his third argument, we agree with the
holding of another panel of this court and hold that our sentencing guidelines do not
violate the Kansas Constitution. Thus, we affirm Hunter's convictions.

Hunter's crimes begin after midnight one night in Lawrence.

In March 2017, college student Dakota Burke and his girlfriend, Madalyn Kruep,
lived in an apartment in Lawrence. Burke and Kruep sold marijuana to friends out of their
apartment. They had another roommate, Ring Ringador, who worked at Whole Foods. He
was out for the night, but some of his property was stolen that night. Shortly after
midnight, Burke heard a gentle knock on the front door. When he looked through the
peephole, he saw only darkness. Suspecting it was a friend playing a prank, Burke
opened the door.

Suddenly two men rushed in demanding money and marijuana. They pointed guns
at Burke's face and forced him to the floor. The men wore dark clothes, hats, and had
their mouths covered. Burke could see "roughly mid cheek to their eyebrows." Their
noses were showing. While one of the men held a gun on Burke, the other searched the
apartment. Burke recognized the man pointing the gun at him based on his distinctive
chubby cheeks and his voice, but he could not remember his name. The other man saw
Kruep look out from inside the bedroom. He chased her down, grabbed her phone, and
demanded money and marijuana from her. When Kruep did not produce any money or
marijuana, the man hit Kruep on her head with his gun, put his hands around her neck,
pushed her into the living room, and laid her down on the floor next to Burke. When
Burke offered to help the men find money, one of the robbers whacked him on the head
with his gun.

The men took the PlayStation 4 game controllers, two pairs of Beats headphones,
Burke's phone, Kruep's wallet that contained about $800, and about $1,000 cash

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belonging to Burke. They grabbed Burke's wallet, some money orders, clothing, and
several jars containing marijuana. One of the jars was labeled "Hydro Lemo." Eventually,
the men instructed Burke and Kruep to count to 100 before getting up, and the men left.

Burke realized that one of the robbers was someone who had been to his apartment
a few times before with Burke's coworker from Texas Roadhouse—Shaun Roberson.
Roberson's name came up several times in both trials. The robber had "chubbier cheeks,
like it was very distinct." Burke "recognized [the man's] voice from the minute that he
stepped in my house." Burke thought the man had "small dreads" coming out of his hat
but was uncertain. Burke talked to friends who knew Roberson to try to figure out the
name of the robber. About 30 minutes after the robbery occurred, Burke and Kruep called
911.

Burke and Kruep went to the police station for interviews. While they sat in an
investigation room, Burke suddenly recalled that the robber's name was Norris. They
searched for "Norris" and "Lawrence" on Facebook and found a profile for Norris
Hunter. Kruep took a picture of the Facebook profile and texted the image to Detective
David Garcia.

The police secured a search warrant for Norris' house. Norris lived with his
mother, sister, and two brothers—Tyrone, and Tavaras. Next to a chair in the living
room, officers found a PlayStation 4 with Ringador's username, Beats headphones, and a
Whole Foods grocery bag containing game controllers. Behind the seat cushion, police
discovered a jar of marijuana labeled "Hydro Lemo." Beneath the seat cushion, police
found a pellet gun and an assortment of paperwork with Norris' name on it. Norris
sometimes slept in that chair. Upstairs in what was believed to be Tavaras' bedroom,
police found another set of Beats headphones, more glass jars containing marijuana, and
a bandana.

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 Police found $911 in Norris' pocket. Norris' mother told detectives that Norris was
home all night. But she was sleeping at the time of the robbery.

The State charged Norris with two counts of aggravated robbery, two counts of
aggravated battery, aggravated burglary, and theft.

The court denied two speedy trial dismissal motions.

The trial date was first set for September 25, 2017. The trial was continued several
times for various reasons. Discovery delays, the State filing a new charge against Norris
stemming from a jailhouse phone call, and issues with unavailable State witnesses, all
caused the trial court to finally set the trial for April 16, 2018.

Before trial, Norris moved to dismiss on speedy trial grounds, arguing that the
continuance granted to the defense on September 18, 2017, should have been charged
against the State because the State had failed to timely provide discovery to the defense.
The trial court had charged that continuance against the defense. Norris specifically told
the court he was not asserting prosecutorial misconduct over the discovery delay. Norris
argued that the failure to reassess the continuance time against the State would impair his
constitutional speedy trial right. The trial court denied the motion after finding that the
State had not purposely delayed the discovery and that Norris was not prejudiced by the
delay.

But later, another discovery issue surfaced during trial. Before trial, Norris had
asked for Roberson's criminal history. At the September 18, 2017 status conference, the
prosecutor objected to the request, believing that Roberson had never been interviewed
by law enforcement and was not going to be a witness. The defense proceeded to trial on
the theory that Tavaras and Roberson were the robbers. Defense counsel told the jury that
despite Roberson's connection to the individuals involved, police elected not to interview

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him. Early on the second day of trial, however, the prosecutor discovered that a detective
had indeed talked to Roberson. The detective failed to put his report into the police
department's file system. The trial court granted a mistrial noting, "I have reached my
limit with regard to these late disclosures in discovery."

Norris again moved to dismiss the charges on speedy trial grounds, this time
alleging misconduct relating to the late disclosure of Roberson's interview with the police
and the subsequent mistrial. After a hearing, the court denied the motion, finding it was
mere "oversight" by the detective in failing to timely file his report.

At the second trial, Hunter suggests that his brother was guilty.

At the second trial, the defense theory was that Tavaras was the robber that Burke
had identified, and the second robber was someone else—likely Roberson. The defense
argued that Norris and Tavaras had similar voices and builds.

Burke testified unequivocally that Norris robbed him. He was "absolutely" certain
it was Norris. He recalled hanging out with Norris and Roberson at least three times,
including once about a week before the robbery. He testified that he recognized Norris'
voice because he "kind of like elongated his words, and I want to say like he had a black
twang to his voice, but I don't know how to say that without sounding too terrible." The
second man also had a "black twang" but it was "much deeper." Burke testified the
second man was not Roberson. Roberson was much taller, not as stalky, had shorter hair,
and Burke knew Roberson's voice. Kruep also knew Roberson and testified Roberson
was not one of the robbers.

At one point, Burke told a detective that Roberson suspected Norris and Tavaras
had committed the robbery together. When Roberson was hanging out with Norris and

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Tavaras, Tavaras had talked about robbing Burke. Burke testified he did not know
Tavaras.

There was other evidence linking Norris to the robbery. Hours before the robbery,
Norris told Tyrone he was "about ready to do something that he shouldn't do." Norris also
told his girlfriend that he planned to go do "something" on that night. He told her that he
would no longer have money problems after. Norris' girlfriend told him to "think before u
do anything tonight" and asked him to let her know when he was home safe. After the
robbery, he messaged her that he was home, he would "never do this again," and "[t]here
was no killing thank god." He told her he needed to get rid of a gun. He said that Tavaras
had committed the robbery and he was just there. In messages to other people after the
robbery, Norris revealed he had marijuana for sale.

Most of the fingerprints on the stolen items were not identifiable. But fingerprints
from two jars of marijuana matched Tavaras'. Norris' DNA was found on the gun. Norris'
police interview was played for the jury in which Norris denied involvement with the
robbery. Norris wore his hair in braids when questioned by police shortly after the
robbery.

Detective Lance Flachsbarth testified that police discounted Roberson as a suspect
because Burke had been working with Roberson for a month and half and would have
recognized his voice or other characteristics. Detective Charles Cottengim testified that
he had contacted Roberson and set up an interview, but Roberson was a no-show. The
detective went to Texas Roadhouse to track him down, but he had stopped working there.
Roberson was never located.

The State offered a photo of Tavaras taken on March 21, 2017, and the court
admitted it into evidence. The State offered the photo to show that Tavaras did not have
chubby cheeks or braids.

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 Norris wanted to call Tavaras as a witness and ask him just four questions:
(1) his name;
(2) if he knew Norris;
(3) how he knew Norris; and
(4) whether he was Norris' older or younger brother.

The defense told the court its "only purpose" for calling Tavaras was for the jury to see
him.

But then, the defense added that it wanted the jury to "hear his voice" when he
answered the questions. Tavaras told the trial court that he would invoke his Fifth
Amendment right against self-incrimination to any other questions, including questions
about whether his appearance had changed since the robbery.

The State objected to Tavaras' limited testimony because he would "basically" be
invoking his Fifth Amendment right on the stand after he answered the defense's four
questions. This impaired the State's ability to cross-examine him, and Tavaras'
appearance had changed significantly since the robbery. The State proffered that since
March 2017, Tavaras had gained about 40 or 50 pounds, his face looked different, and his
hair was braided.

The trial court excluded Tavaras' testimony, finding it would prejudice the State to
not be able to cross-examine him. The court pointed out that the defense could have
family members testify to the appearances of Tavaras and Norris around the time of the
robbery. The court permitted the jury to observe Tavaras as he stood silent next to the
witness stand for a short time.

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 The jury found Norris guilty of two counts of aggravated robbery and one count
each of battery, aggravated burglary, and theft. Using a criminal history score of B, the
court sentenced him to 228 months' imprisonment.

We begin with Norris calling his brother to testify.

Norris contends that evidence of the similarities between his voice and Tavaras'
voice was essential to his defense. He argued that Tavaras was the robber and not
himself. Because of this, he argues the trial court violated his right to present a complete
defense. In his view, admitting this limited testimony was proper under State v. Crumm,
232 Kan. 254, 654 P.2d 417 (1982). He argues the trial court's concern about prejudicing
the State was not an appropriate basis to exclude the testimony.

The State contends that allowing "Tavaras's limited, unchecked testimony would
have frustrated the truth-seeking purpose of the trial. The district court protected the
integrity of the adversarial process by excluding this testimony." The State complains it
would not have been able to cross-examine Tavaras on issues such as his identity, his
feelings about his brother, and any interest he might have in the outcome of the trial. The
State would have had to leave Tavaras' credibility untested. The State also argues that
Tavaras' testimony would not have changed the trial's outcome.

The admission of evidence involves several legal considerations. A court must
determine its relevance and identify and apply any appropriate legal principles, including
the rules of evidence. The court must weigh prejudice against probative value. See State
v. Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010).

First, a court must determine whether the evidence is relevant. All relevant
evidence is admissible unless it is prohibited by statute, constitutional provision, or court
decision. See K.S.A. 60-407(f); Nauheim v. City of Topeka, 309 Kan. 145, 153, 432 P.3d

8
647 (2019). Even if evidence is relevant, a district court may exclude it when the court
finds its probative value is outweighed by its potential for producing undue prejudice.
K.S.A. 60-445.

In turn, an appellate court reviews any such determination for an abuse of
discretion. State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). Whether a
particular legal principle or statutory rule governs the admission of particular evidence is
a question of law subject to de novo review. A principle or rule, however, is applied as a
matter of law or as an exercise of the district court's discretion, depending on the
applicable rule. See State v. Miller, 308 Kan. 1119, 1166, 427 P.3d 907 (2018).

The erroneous admission or exclusion of evidence is subject to review for
harmless error under K.S.A. 2019 Supp. 60-261. State v. Lowery, 308 Kan. 1183, 1235,
427 P.3d 865 (2018). But if the error implicates a constitutional right, the effect of that
error must be assessed under the constitutional harmless error standard: whether the
party benefiting from the error proves beyond a reasonable doubt that the error would not
or did not affect the outcome of the trial given the entire record. State v. Williams, 306
Kan. 175, 202-03, 392 P.3d 1267 (2017).

A proper proffer of the substance of the evidence sought to be admitted is required
for an appellate court to be in a position to review a challenge to its exclusion. See K.S.A.
60-405; State v. Garza, 290 Kan. 1021, 1029, 236 P.3d 501 (2010).

Rules that we must apply in this case

A district court violates a criminal defendant's fundamental right to a fair trial if
the court excluded relevant, admissible, and noncumulative evidence which is an integral
part of the theory of the defense. But the right to present a defense is subject to statutory
rules and judicial interpretation of the rules of evidence and procedure. State v. Banks,

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306 Kan. 854, 865, 397 P.3d 1195 (2017). Whether an evidentiary ruling has violated the
defendant's constitutional right to present a defense is subject to unlimited appellate
review. See State v. Seacat, 303 Kan. 622, 638-39, 366 P.3d 208 (2016).

A defendant must be permitted to present a complete defense in a meaningful
manner. But a defendant's right to call and examine witnesses is not absolute and can be
overridden by other legitimate interests in the criminal trial process. The Fifth
Amendment to the United States Constitution is one of those interests. Crumm, 232 Kan.
at 259. The Fifth Amendment provides that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself." Similarly, K.S.A. 60-425 provides that
"every natural person has a privilege, which he or she may claim, to refuse to disclose in
an action . . . any matter that will incriminate such person." This prohibition not only
permits a person to refuse to testify against himself at a criminal trial in which he is a
defendant, but also privileges him not to answer questions put to him during the trial of
another person where the answers might incriminate him in his own future criminal
proceedings. State v. Contreras, 58 Kan. App. 2d 255, 268-69, 467 P.3d 522
(2020)(quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274
[1973]), rev. granted 312 Kan. ___ (August 27, 2020).

Claims of Fifth Amendment privilege should be determined outside the presence
of the jury because undue weight may be given by a jury to a claim of privilege. It is
improper for the prosecution or the defense knowingly to call a witness who will claim
privilege, for the purpose of impressing upon the jury the fact of the claim of privilege.
Crumm, 232 Kan. 254, Syl. ¶¶ 1-2. "'The jury may think it high courtroom drama of
probative significance when a witness ''takes the Fifth.'' [Citation omitted.]'" Crumm, 232
Kan. at 260. When the trial court is on notice that a witness will likely invoke his or her
Fifth Amendment privilege against self-incrimination, the court should admonish the
witness not to invoke that Fifth Amendment right in the presence of the jury. State v.

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Simpson, 29 Kan. App. 2d 862, 874, 32 P.3d 1226 (2001). It is the prospect of this type of
spectacle that concerns us here, and not prejudice to the State.

In Crumm, the State's theory was that the defendant killed his stepbrother at the
direction of his mother. The defense asserted was insanity. By the defendant's trial, the
defendant's mother had been arrested, questioned, and charged, but the charges had been
dismissed. She was aware, however, that she could still be charged with the murder. The
defendant sought to call his mother as a witness at his trial. The State asked the court to
instruct defense counsel not to ask her about any matters which might cause her to invoke
her Fifth Amendment privilege. The trial court granted the motion and no such questions
were asked.

The defendant's mother testified on his behalf, but her testimony concerned only
the defendant's early life, and did not address the events connected with the homicide. On
appeal, the defendant contended that his counsel should have been permitted to question
his mother about the homicide. But our Supreme Court disagreed. 232 Kan. at 260-61.
Before his trial, the defendant's mother had informed the court that she would not answer
any questions which might incriminate her—she would assert her Fifth Amendment
privilege. Thus, any such questioning by counsel would have caused the witness to
invoke her privilege in open court before the jury. The court held that it was improper for
either party to knowingly call a witness who will claim privilege merely for the purpose
of having that witness do so in the presence of the jury. The Supreme Court found no
error in the trial court's ruling. 232 Kan. at 261.

Said another way, under the holding in Crumm, a defendant cannot call a witness
just for the purpose of having the witness assert a Fifth Amendment privilege before the
jury. But, unlike in Crumm, that is not what Norris wanted to do here. He wanted to call a
witness only to answer four questions that the witness had agreed to answer. The Crumm
court did not say it would prejudice the State if the State could not cross-examine the

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witness on innocuous questions that the witness answered. The court in Crumm did hold
it is within the discretion of the trial court to determine whether a witness, who the court
knows intends to invoke his or her Fifth Amendment privilege, should be permitted to
take the stand. 232 Kan. at 260-61.

A case we find persuasive on this point is Lawson v. Murray, 837 F.2d 653, 655-
56 (4th Cir. 1988). It holds that the right of a defendant to present witnesses in his or her
own defense "does not carry with it the right to immunize the witness from reasonable
and appropriate cross-examination," reasoning that cross-examination is an indispensable
tool in the search for truth. 837 F.3d at 655-56. Thus, the trial court does not abuse its
discretion in striking testimony of a witness who invokes his or her privilege against self-
incrimination on cross-examination. Thus, what the defense can present is not unlimited.
But we are concerned about the prospect of Tavaras claiming his Fifth Amendment
privilege in front of the jury.

There was a real risk of prejudice if Tavaras' testimony did not go as planned.
Tavaras could have invoked the Fifth Amendment on the stand at any time, or tried to
alter his voice to sound more like his brother. Thus, with this show in front of the jury,
the inference could be drawn that he who claims the privilege is guilty—not the
defendant. This is the very problem Crumm addressed. Thus, we do not view this ruling
by the trial court as error.

There is one more point to be made. Norris argues that instead of cross-examining
Tavaras, the State could have called Norris' family members to testify about the
similarities (or lack thereof) of his and Tavaras' voices. But that argument works against
Norris' constitutional claim. Norris was not denied the right to present his defense that
Tavaras' voice was similar to his voice. He could have called his family members to
testify to that effect. Thus, the trial court's error, if any, may not rise to a constitutional
error.

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 Even if we assume that the trial court erred by excluding Tavaras' limited
testimony, the error was harmless. We find beyond a reasonable doubt that the claimed
error did not affect the outcome of the trial given the entire record.

The primary problem with Norris' defense—that he was not robber number one—
is that it did not exonerate him. Norris blamed his brother, Tavaras. But there were two
robbers. The State's theory was that Norris and Tavaras were the robbers. Their voices
could have been similar. Burke testified both robbers had a "black twang." As Norris
notes, that does raise a concern about cross-racial identification issues. But Burke relied
on more than Norris' voice to identify him. Burke knew Norris. Norris had hung out at his
apartment and played video games two or three times before. Norris' face was not
completely covered; only his mouth and above his eyes were covered. Burke recognized
Norris' "chubbier cheeks." Burke could see the robbers' builds. Burke thought he saw
Norris' dreads. He was unequivocal in his testimony that Norris was one of the robbers.
Burke was also confident Roberson was not one of the robbers.

The police immediately searched Norris' home and found some of the stolen items
in the area where Norris slept. Norris was carrying over $900 in cash. Hours before the
robbery, Norris told Tyrone and his girlfriend he planned to do something that he should
not do. In text messages, Norris told his girlfriend that he would not have money
problems after he did "something". Norris' girlfriend tried to talk him out of it and asked
him to let her know when he was home safe. After the robbery was over, Norris
messaged her that he was home, he would "never do this again," and "[t]here was no
killing thank god." He told her he needed to get rid of a gun. He told her that Tavaras had
committed the robbery and he was there. In messages to other people after the robbery,
Norris revealed he had marijuana for sale.

Norris asks us to overturn his conviction on the possibility that Tavaras' voice was
so much like Norris' voice, the jury would have found Burke mistakenly identified a

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partially masked Tavaras as Norris. Tavaras' voice is not in the record so we cannot
independently review the similarity, if any. Even so, there was significant evidence
linking Norris to the robbery other than the possible similarities in Norris' and Tavares'
voices. We find no error here.

We turn to the speedy trial issue.

Norris focuses on the continuance granted on September 18, 2017, moving the
trial date from September 25 to October 30, 2017. He contends prosecutorial misconduct
caused that delay. In his view, the prosecutor acted with gross disregard for his rights
when she failed to disclose the "phone dump" from Norris' cell phone promptly.

The record reflects that:
• The raw data from Norris' phone search was placed into evidence on
August 3;
• a summary of some of the materials from the phone pull was provided to
the defense on August 16;
• the defense asked for the raw data on August 24;
• but the raw data was not disclosed to the defense until September 18, 2017.

Norris also argues that the prosecutor's failure to disclose the law enforcement
contact with Roberson at the status conference on September 18, 2017, constituted
misconduct. He argues reversal of his conviction is warranted under K.S.A. 2017 Supp.
22-3402(g) because of the misconduct.

In the alternative, he argues reversal is warranted because the delay amounted to a
constitutional speedy trial violation. He contends the State's untimely discovery impaired
his defense. He proceeded into the first trial believing that the police had not contacted

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Roberson and he was forced to request a mistrial. And in doing so, he previewed his
defense to the State before the second trial.

The rules we must follow on this issue are well established.

A defendant's statutory speedy trial right must be considered in ruling on a motion
for continuance. The State has an obligation to ensure the defendant is provided a speedy
trial within statutory limits. But delays which result from the defendant's application or
fault are not counted in computing the statutory period, including delays from a
continuance granted at the defendant's request. State v. Robinson, 306 Kan. 1012, 1018-
19, 399 P.3d 194 (2017).

Under K.S.A. 2017 Supp. 22-3402(a), a person charged with a crime and held in
jail for that crime must be brought to trial within 150 days after that person's arraignment
or discharged from further liability for the crime, unless the delay was the result of the
application or fault of the defendant, or a continuance was ordered by the court under
subsection (e).

If the defendant requests a continuance and one 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." K.S.A. 2017 Supp. 22-3402(g). If a
delay is at first attributed to the defendant, as here, but is later charged to the State for any
reason, such delay "shall not be used as a ground 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." K.S.A. 2017 Supp. 22-
3402(g). Norris asserts both prosecutorial misconduct and a violation of his constitutional
speedy trial right.

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 Citing the United States Supreme Court, our Supreme Court has identified four
nonexclusive factors to be analyzed when a criminal defendant makes a Sixth
Amendment speedy trial claim. Those factors are:
• the length of delay;
• the reason for the delay;
• the defendant's assertion of his right; and
• prejudice to the defendant.
State v. Owens, 310 Kan. 865, 869, 451 P.3d 467 (2019) (quoting Barker v. Wingo, 407
U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 [1972]).

Kansas courts employ a balancing test that requires weighing the conduct of both
the prosecution and the accused. None of the factors is a necessary or sufficient condition
for finding a violation. Instead, we consider them together along with any other relevant
circumstances. Owens, 310 Kan. at 869.

A trial court's factual findings on a defendant's speedy trial right are reviewed for
substantial competent evidence, but the ultimate legal conclusion drawn from those facts
is reviewed de novo. 310 Kan. at 868. Interpretation of the defendant's statutory speedy
trial right is a question of law reviewed de novo. State v. Williams, 311 Kan. 88, 92, 456
P.3d 540 (2020).

The claim of misconduct is not supported in the record.

We note that the trial court found no misconduct by the State. The court found the
prosecutor had not "intentionally" delayed the phone dump discovery. And the court
found that Detective Cottengim's failure to file the Roberson report was an oversight. In
other words, negligence. That does not rise to the level of misconduct.

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 "'Prosecutorial acts properly categorized as "prosecutorial misconduct" are
erroneous acts done with a level of culpability that exceeds mere negligence.'" State v.
Chandler, 307 Kan. 657, 695, 414 P.3d 713 (2018). The record here does not show that
the prosecutor acted with a culpability exceeding mere negligence.

Norris tries to avoid that problem by now arguing the prosecutor committed a
Brady violation. We are not so persuaded. First, the phone dump discovery was not
exculpatory or impeaching. Under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), prosecutors have an affirmative duty to disclose evidence
favorable to the accused when the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecutor. Because law enforcement's
knowledge of evidence is imputed to the State, a Brady violation can occur when the
prosecutor withholds material evidence that is not known to the prosecutor, but is known
to law enforcement.

There are three essential elements of a Brady violation:
(1) The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching;
(2) the evidence must have been suppressed by the State, either willfully or
inadvertently; and
(3) the evidence must be material so that it establishes prejudice.
State v. Hirsh, 310 Kan. 321, 334, 446 P.3d 472 (2019).

Norris admits the phone dump lacked exculpatory or impeaching evidence. And
the continuance granted on September 18, 2017, was not granted because of the Roberson
information. The Roberson issue surfaced later.

Second, delayed rather than absent disclosure of exculpatory information may not
qualify as a Brady violation if the defendant cannot establish prejudice because of his or

17
her inability to use the Brady material effectively at trial. Hirsh, 310 Kan. at 336. Norris
fails to establish prejudice relating to the delayed discovery.

And finally on this point, a Brady violation is not per se prosecutorial misconduct.
State v. Henderson, No. 120,213, 2020 WL 1658859, at *8 (Kan. App. 2020)
(unpublished opinion), rev. denied 312 Kan. ___ (September 30, 2020).

Norris' constitutional speedy trial right was not violated.

The trial court did not analyze each of these factors—it simply found there was no
prejudice to the defense. We will take a closer look at the four factors.

1. Length of delay

Courts consider whether the length of the delay is presumptively prejudicial in
relation to the complexity of the case given the type of crime charged and the nature of
the evidence involved. A long delay for an ordinary street crime charge will be less
tolerated than a delay for a serious, complex conspiracy charge. In Owens, the court
found a 19-month delay between Owens' arrest and trial presumptively prejudicial in a
simple and straightforward aggravated robbery case given the nature of the evidence
involved. 310 Kan. at 875.

Norris was charged with aggravated robbery, battery, aggravated burglary, and
theft. He was charged on March 8, 2017. His first jury trial began on April 16, 2018. This
was about a 13-month delay.

At one of the hearings, the trial court noted that it appointed Norris two attorneys
because there was a "massive amount of discovery." The trial took a week. Still, it was
not a complicated case. Norris was identified hours after the robbery. The evidence

18
mainly consisted of two eyewitnesses' testimony, statements from Norris' mother and
brother, a series of stolen items found during the search of the Hunters' home, and text
messages found on Norris' phone. The delay was not overly prejudicial, but we will carry
on with the analysis.

2. Reason for delay

A deliberate attempt to delay the trial to hamper the defense weighs heavily
against the government. A more neutral reason such as negligence weighs less heavily,
but it still should be considered since the ultimate responsibility to bring the defendant to
trial in a timely manner rests with the State. A reason such as a missing witness justifies
appropriate delay. When the defendant's actions were the primary cause of the delay, the
second factor weighs heavily against the defendant. Owens, 310 Kan. at 875-76.

The State requested one continuance because of unavailable witnesses—a justified
delay. Norris requested two continuances because of the belated phone dump discovery
and the impending new charges. Those delays do not weigh heavily either way.

3. Assertion of right

When Norris asked for his first continuance, he did argue for the time to be
charged against the State. Norris did move to dismiss on speedy trial grounds twice. But
Norris also asked for a second continuance knowing that he was waiving his speedy trial
right by doing so. Again, this factor does not weigh heavily for either side.

4. Prejudice

The speedy trial right was designed to protect three interests:
• to prevent oppressive pretrial incarceration;
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 • to minimize anxiety and concern of the accused; and
• to limit possible impairment of the defense.
Owens, 310 Kan. at 880.

Norris was incarcerated while awaiting trial. But there is no indication in the
record that the defense was impaired because of the delay. Neither the phone dump
discovery, the police's contact with Roberson, nor the new charges appear to have
changed Norris' defense strategy. There is no indication that witnesses were unable to
testify due to the delay.

The prosecutor's representation to the defense that there had been no police contact
with Roberson could be considered prejudicial. In State v. Grey, 46 Kan. App. 2d 988,
1002, 268 P.3d 1218 (2012), this court held a prosecutor's false representation to the
defense caused a great prejudice to the defense:

"[W]hen the State has maintained to the court and defense counsel that it does not have
certain evidence, fundamental fairness calls for the State to inform the court and counsel
that it now has such evidence. This is especially true when the defense has been
structured on the State's representation that such evidence does not exist. Under the
circumstances in this case, failure to disclose the change amounted to a deception that
created a great prejudice to the defense."

Here, like in Grey, the prosecutor represented to the defense that law enforcement
had no contact with Roberson, which was not true. But the prosecutor did not know it
was untrue. And unlike in Grey, as soon as the prosecutor discovered Detective
Cottengim had contact with Roberson, she disclosed that to the defense.

But any issue with the late Roberson discovery was cured by the mistrial. Norris
cannot complain about a speedy trial violation in relation to the mistrial because a

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mistrial resets the speedy trial clock. See K.S.A. 2017 Supp. 22-3402(f); Williams, 311
Kan. at 92-93.

The relevant factors do not support finding a constitutional speedy trial violation.

Our sentencing guidelines do not violate the Kansas Constitution.

Norris contends that the sentencing court's use of his prior convictions to elevate
his sentence without the convictions having been found by a jury violated his right to a
jury trial under section 5 of the Kansas Constitution Bill of Rights and the Sixth
Amendment to the United States Constitution as interpreted by Apprendi v. New Jersey,
530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He argues that when the
Kansas Constitution was enacted, criminal defendants had a common-law right to a jury
trial on penalty-enhancing prior conviction findings, and that section 5 preserved that
right. He acknowledges he did not raise these issues below but argues he can raise them
for the first time on appeal because they are pure questions of law and necessary to
preserve his fundamental right.

Norris admits that our Supreme Court has repeatedly rejected his challenge with
respect to the United States Constitution. See State v. Sullivan, 307 Kan. 697, 708, 414
P.3d 737 (2018) (reaffirming State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 [2002]). We
are duty-bound to follow this precedent. See State v. Rodriguez, 305 Kan. 1139, 1144,
390 P.3d 903 (2017). We will not rule otherwise now.

A panel of this court recently considered and rejected Norris' challenge with
respect to the Kansas Constitution in State v. Albano, 58 Kan. App. 2d 117, 464 P.3d 332
(2020), rev. granted 312 Kan. ___ (September 30, 2020). Section 5 of the Kansas
Constitution Bill of Rights states: "The right of trial by jury shall be inviolate." The
Albano panel held that section 5 provides protection like, not greater than, the federal jury

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trial right. 58 Kan. App. 2d at 129. The panel also held that there was no universal
common-law right to have a jury find prior convictions, and Kansas' position has always
been that a defendant does not have a right to have a jury determine prior convictions for
sentencing purposes. 58 Kan. App. 2d at 134.

The Albano panel's reasoning is sound, and we hold similarly. Our guidelines do
not violate the Kansas Constitution.

Affirmed.

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