IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,034
STATE OF KANSAS,
Appellee,
v.
RICKEY MARKS,
Appellant.
SYLLABUS BY THE COURT
Neither K.S.A. 2020 Supp. 22-3212 nor K.S.A. 2020 Supp. 22-3213 permit
postconviction discovery in a criminal case.
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed July 2, 2021.
Affirmed.
Joseph A. Desch, of Law Office of Joseph Desch, of Topeka, was on the brief for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: Rickey Marks seeks personal copies of records the State made
available to his attorney more than a decade ago during criminal proceedings that led to
his conviction of first-degree premeditated murder. The district court denied Marks' pro
se and barebones postconviction motion to compel the production of those records, and
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he brought this appeal. Before us, now represented by counsel, Marks cites K.S.A. 2020
Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 as authority for his motion to compel. But
neither K.S.A. 2020 Supp. 22-3212 nor K.S.A. 2020 Supp. 22-3213 permit
postconviction discovery in a criminal case. We thus reject his arguments and affirm the
district court's denial of Marks' motion to compel discovery.
FACTS AND PROCEDURAL BACKGROUND
Marks has litigated the question of whether he is entitled to a copy of the
discovery materials throughout this case. Before his trial on the first-degree premeditated
murder conviction, he asked the trial court judge to require the State give him his own
copy of discovery materials and witness statements. The State objected, noting it had an
open-file discovery policy and was giving Marks' trial counsel full access to its records.
The trial judge denied Marks' request for a personal copy of the discovery. On the record,
Marks' counsel told the judge the defense team would review and discuss all the
discovery material with Marks.
A trial followed, and a jury convicted Marks of first-degree premeditated murder.
A judge sentenced Marks to a hard 25 life sentence, and Marks appealed to this court. In
that appeal, he argued, among other issues, that the trial judge erred when the judge ruled
that Marks was not entitled to a personal copy of the discovery. He based this allegation
on both statutory and constitutional grounds.
We agreed with his argument in part. We found merit in his statutory argument:
"Under the plain language of K.S.A. 22-3212 and K.S.A. 22-3213, the defendant is
entitled to personal copies of certain discovery upon request." State v. Marks, 297 Kan.
131, Syl. ¶ 7, 298 P.3d 1102 (2013). But we rejected Marks' argument that he had a
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constitutional right to personal copies. We noted "'[t]here is no general constitutional
right to discovery in a criminal case.'" 297 Kan. at 149 (quoting Weatherford v. Bursey,
429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 [1977]). As to Marks' argument that the
judge's ruling infringed on his constitutional right to meaningfully participate in his own
defense, we held that he failed to support that argument. First, he did "not articulate how
his participation was actually impeded when he otherwise had the opportunity to review
the information with his attorney." 297 Kan. at 148. Second, he failed to "cite any
authority which would support his theory of constitutional infringement." 297 Kan. at
148. After discussion of relevant caselaw, we held that "[a] defendant's right to assistance
in his or her defense does not translate to a constitutional right to personal copies of
discovery, particularly when that discovery was already provided to his or her attorney."
297 Kan. at 149 (citing United States v. Shrake, 515 F.3d 743, 745 [7th Cir. 2008]; State
v. Deavers, 252 Kan. 149, 158, 843 P.2d 695 [1992], cert. denied 508 U.S. 978 [1993];
People v. Davison, 292 Ill. App. 3d 981, 988, 686 N.E.2d 1231 [1997]).
We then turned to the question of whether the violation of Marks' statutory right to
have a copy of the discovery was harmless. We noted that the State's open file policy
allowed Marks' attorneys access to discovery that met or exceeded the requirements of
the criminal discovery statutes. And Marks did not allege his defense was compromised
by any failure to obtain copies or that his counsel failed to review discovery with him.
We thus held there was no reasonable probability the district court's erroneous
interpretation of K.S.A. 22-3212 and K.S.A. 22-3213 affected the trial's outcome. In
other words, the statutory error was harmless. Marks, 297 Kan. at 150.
About five years later, Marks renewed his effort to get personal copies of the
discovery—this time through a postconviction motion filed under K.S.A. 60-1507. The
district court held a full evidentiary hearing before denying relief. The Court of Appeals
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affirmed. Marks v. State, No. 115,444, 2017 WL 2494990 (Kan. App. 2017) (unpublished
opinion).
Marks also pursued habeas relief in federal court. The federal district court
dismissed Marks' petition in part and denied it in part. See Marks v. Cline, No. 5:18-CV-
03065-HLT, 2020 WL 1812267 (D. Kan. 2020) (unpublished opinion). Marks appealed
to the Tenth Circuit, which recently denied his request for a certificate of appealability.
Marks v. Cline, No. 20-3071, __ Fed. Appx. __, 2021 WL 1343673 (10th Cir. 2021)
(unpublished opinion).
While the federal action was pending, Marks also persisted with repeated attempts
to obtain postconviction discovery through motions filed in his state criminal case. His
three most recent attempts were filed on June 8, June 30, and July 2, 2020. The district
court denied all three.
The first request filed June 8 cited no authority for requesting the discovery. The
sole basis for the request appears to be: "Without this discovery plaintiff will not be able
to present me[ritor]ious issues to the US District Court 10th Circuit." The district court
denied the motion on June 16, 2020; the order did not address the June 30 or July 2,
2020, motions. Marks filed a notice of appeal relating to "all issue[s] that were ruled on
the motion to produce discovery filed June 8, 2020." (Emphasis added.) The Docketing
Statement identified the subject of the appeal as the district court's ruling dated June 16,
2020. And Marks' brief confirms his appeal is limited to the June 16, 2020, district court
order. Thus, although the history of the case involves several district court rulings, we
restrict our consideration to Marks' June 8, 2020, motion that the district court denied on
June 16, 2020.
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As noted, Marks' pro se filing offered no authority for his request. But, through
counsel, Marks' appellate brief argues K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020
Supp. 22-3213 authorized the district court to grant his discovery request. Marks argues
liberal construction of his pro se pleadings permits the court to consider this argument.
We agree. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).
ANALYSIS
Marks' appeal, as argued before us, thus hinges on whether K.S.A. 2020 Supp. 22-
3212 and K.S.A. 2020 Supp. 22-3213 authorize a district court to order postconviction
discovery. He recognizes that we have rejected arguments that authority for
postconviction discovery arises from other statutes. For example, he cites to our holding
in State v. Robinson, 309 Kan. 159, 161, 432 P.3d 75 (2019), that "'[n]othing in [K.S.A.
2015 Supp. 60-237] permits a postconviction motion to compel discovery in a criminal
case.'"
In placing all his discovery eggs in the K.S.A. 2020 Supp. 22-3212 and K.S.A.
2020 Supp. 22-3213 basket, he notes that "'K.S.A. 22-3212 . . . sets out comprehensive
notice and discovery requirements for the parties in criminal trials.' State v. Edwards, 299
Kan. 1008, 1015, 327 P.3d 469 (2014)." And "'[a] defendant may request discovery
pursuant to K.S.A. 22-3212 and 22-3213.' State v. Sherry, 233 Kan. 920, 929, 667 P.2d
367 (1983)." Marks suggests these holdings mean that postconviction discovery is
allowed by these statutes.
Marks' arguments ignore the plain language of these statutes. Yet the outcome of
this appeal depends on whether, through the language in K.S.A. 2020 Supp. 22-3212 and
K.S.A. 2020 Supp. 22-3213, the Legislature expressed an intent to allow postconviction
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discovery. "To divine that intent, courts examine the language of the provision and apply
plain and unambiguous language as written. If the Legislature's intent is not clear from
the language, a court may look to legislative history, background considerations, and
canons of construction to help determine legislative intent." Jarvis v. Dept. of Revenue,
312 Kan. 156, 159, 473 P.3d 869 (2020). This question of statutory interpretation
presents an issue of law subject to our unlimited review. 312 Kan. at 159.
Both K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 are plain and
unambiguous, at least as to the question of whether they authorize postconviction
discovery. No provision explicitly allows a district court to order postconviction
discovery. And both statutes include temporal limitations relating to the pretrial and trial
phases of criminal proceedings. These temporal limitations exclude postconviction
discovery.
K.S.A. 2020 Supp. 22-3213, the narrowest of the two statutes, relates to the
discovery of witness statements. Its provisions are not triggered until the defense makes a
request after a "witness has testified on direct examination at the preliminary hearing or
in the trial of the case." K.S.A. 2020 Supp. 22-3213(a). Once the witness testifies and a
discovery request is made, the statute makes clear the State must deliver the requested
materials "directly to the defense for examination and use by the defense." K.S.A. 2020
Supp. 22-3213(b). The Legislature accommodated the potential disruption this
sequencing and timing might cause by stating that the court could "recess proceedings in
the trial for such time as it may determine to be reasonably required for the examination
of such statement by the defense and preparation for its use in the trial." K.S.A. 2020
Supp. 22-3213(c). These provisions reveal a legislative intent that the provisions be
applied promptly and during the preliminary hearing or the trial.
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K.S.A. 2020 Supp. 22-3212 relates to other materials—a defendant's statements,
reports, test results, and other matters—that the defense and prosecution may discover
and inspect on request of the other party. K.S.A. 2020 Supp. 22-3212(a)-(d). K.S.A. 2020
Supp. 22-3212 limits the statute's applicability to requests made before trial or, at the
latest, during trial. For example, some provisions require expert reports or summaries of
such reports be provided before trial. E.g., K.S.A. 2020 Supp. 22-3212(b)(2) (prosecuting
attorney); K.S.A. 2020 Supp. 22-3212(c)(2) (defense attorney). And in subsection (h), the
Legislature directed that the discovery "must be completed no later than 21 days after
arraignment or at such reasonable later time as the court may permit." But the Legislature
included an exception in subsection (i) if, "prior to or during trial, a party discovers
additional material previously requested or ordered which is subject to discovery or
inspection under this section." In that circumstance, "the court may order such party to
permit the discovery or inspection of materials not previously disclosed, grant a
continuance, or prohibit the party from introducing in evidence the material not disclosed,
or it may enter such other order as it deems just under the circumstances." K.S.A. 2020
Supp. 22-3212(i). Each of these remedies relates to pretrial or trial proceedings.
Also, the word "discovery" is used throughout the provisions. See K.S.A. 2020
Supp. 22-3212(c), (d), (f), (g), (h), (i); K.S.A. 2020 Supp. 22-3213(a). Discovery is
understood to relate to pretrial proceedings. See Black's Law Dictionary 584 (11th ed.
2019) ("The pretrial phase of a lawsuit during which depositions, interrogatories, and
other forms of discovery are conducted." [Emphasis added.]). Consistent with this
definition, K.S.A. 2020 Supp. 22-3212 and 22-3213 are aimed at discovery before or, at
the latest, during a criminal trial for use during trial. Neither addresses postconviction
discovery such as that sought here.
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The caselaw cited by Marks further supports reading the statutes as applying to
only pretrial and trial proceedings. He primarily relies on State v. Mundo-Parra, 58 Kan.
App. 2d 17, 462 P.3d 1211, rev. denied 312 Kan. 899 (2020). Mundo-Parra is an apt case
because Jose Mundo-Parra also sought postconviction discovery through motions in his
criminal case. But Marks overlooks a sentence in Mundo-Parra that cuts against his
attempt to seek discovery. In the overlooked passage, the Court of Appeals panel
interpreted K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 "to apply only
before trial . . . ." 58 Kan. App. 2d at 20-21.
Marks' trial concluded years ago. If K.S.A. 22-3212 and 22-3213 are limited to
pretrial discovery, as the Mundo-Parra panel interpreted them to be, they do not support
Marks' request for postconviction discovery. And we agree with the Mundo-Parra panel's
conclusion that these statutes are limited to pretrial proceedings, or at the very latest
production of discovery materials during trial.
Another case cited by Marks, State v. Edwards, 299 Kan. 1008, 327 P.3d 469
(2014), suggests a different reason for us to hold that K.S.A. 2020 Supp. 22-3212 and
K.S.A. 2020 Supp. 22-3213 do not extend to postconviction discovery. Marks cites
Edwards for the proposition that K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp 22-
3213 set out comprehensive notice and discovery requirements. But Edwards referenced
this comprehensive scheme as applying to "the parties in criminal trials." (Emphasis
added.) 299 Kan. at 1016. It did not recognize another context in which the scheme
would apply.
Further, the holding, while not on point, suggests the Legislature did not intend the
language of these statutes to be extended. In that holding, we rejected the defendant's
argument that the State must comply with K.S.A. 60-226, which requires parties in civil
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proceedings to provide notice of expert witnesses. In reaching this holding, we
recognized that the code of civil procedure could apply in criminal proceedings if the
code of criminal procedure includes no contrary provisions. But because the criminal
code "sets out comprehensive notice and discovery requirements for the parties in
criminal trials" we concluded that, "[i]f the legislature intended to require special expert
witness requirements, it could have placed those requirements in K.S.A. 22-3212."
299 Kan. at 1016.
Likewise, because K.S.A. 2020 Supp. 22-3212 and K.S.A. 2020 Supp. 22-3213 set
out comprehensive pretrial and trial discovery requirements but no postconviction
discovery requirements we infer the Legislature intended no such discovery be allowed
under the authority of these statutes.
In short, Marks cites no support for his theory that K.S.A. 2020 Supp. 22-3212 and
K.S.A. 2020 Supp. 22-3213 apply to his motion for postconviction discovery. Before us,
he cites no other basis for the discovery he now requests. We therefore affirm the district
court's denial of Marks' motion to compel discovery.
Affirmed.
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