State v. Kelly

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,210

STATE OF KANSAS,
Appellee,

v.

MICHAEL J. KELLY, JR.,
Appellant.


SYLLABUS BY THE COURT


A defendant who is tried solely on stipulated facts timely interposes an objection
to the admission of evidence by filing a motion under K.S.A. 22-3216(3) to suppress
evidence and, in doing so, satisfies the requirements of K.S.A. 60-404, even if an
objection to the evidence is not stated at trial.

Review of the judgment of the Court of Appeals from an order dated February 17, 2010. Appeal
from Sedgwick District Court; BENJAMIN J. BURGESS, judge. Opinion filed September 28, 2012. The
Court of Appeals' order summarily dismissing the appeal is reversed and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Recently, in State v. Bogguess, 293 Kan. 743, 268 P.3d 481 (2012),
this court held that the lack of an objection during a bench trial that consisted solely of
stipulated facts did not preclude appellate review of the pretrial denial of a defendant's
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motion to suppress. We explained that "when the bench trial is conducted by the same
judge who presided over the hearing on the motion to suppress, there is no reason to
rehash the same arguments when no additional evidence has been presented." Bogguess,
293 Kan. at 747.

This case raises the question of whether the Bogguess holding applies when the
bench trial is conducted by a different judge than the one who made the pretrial
suppression ruling. We conclude that having more than one judge involved in the
proceedings does not alter the two-fold rationale of the decision in Bogguess. First, a
defendant's stipulation to facts for the purpose of a bench trial precludes a defendant from
asking the trial judge to ignore—in other words, suppress—evidence that a defendant has
agreed can be admitted and considered. Second, because the case is tried solely on
stipulated facts there will be no new evidence or arguments submitted that might change
the ruling on the motion to suppress. Consequently, there is no legal or factual basis to
revisit the suppression issue.

In this case, the defendant's objection to evidence was preserved, and the Court of
Appeals erred in concluding it was not.

FACTUAL AND PROCEDURAL BACKGROUND

Michael J. Kelly, Jr., appeals from his convictions of possession of cocaine, a
severity level 4 drug offense, and possession of marijuana, a class A nonperson
misdemeanor.

Before trial, Kelly filed a motion to suppress the drug evidence, arguing the drugs
were seized during an unlawful traffic stop. A district judge conducted an evidentiary
hearing and denied Kelly's motion.

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After the district judge ruled, Kelly waived his right to a jury trial. Kelly's case
then proceeded to a bench trial before a different district judge than the one who had
denied Kelly's motion to suppress. At the bench trial, the parties stipulated to the
admission of a laboratory report and an affidavit of a detective who investigated the case.
The detective recited details of the traffic officer's arrest report, noting that Kelly had
been stopped for failing to signal and had been arrested when he told the traffic officer
his driver's license was suspended. A search incident to arrest revealed substances in
Kelly's pockets that the traffic officer suspected were marijuana and cocaine. The
laboratory report confirmed the suspicion. No evidence other than the laboratory report
and the affidavit was admitted.

The trial judge stated that he had "review[ed] the content of the court file" but did
not specifically mention the motion to suppress. Kelly did not mention the motion either
and did not state any objections to the judge's consideration of the evidence. The trial
judge found the evidence sufficient to convict Kelly as charged.

Kelly appealed his convictions, and the Court of Appeals summarily affirmed
under Supreme Court Rule 7.041 (2011 Kan. Ct. R. Annot. 59). The Court of Appeals
concluded Kelly's challenge was procedurally deficient under State v. King, 288 Kan.
333, 204 P.3d 585 (2009), due to a lack of an objection as required by K.S.A. 60-404.


Kelly sought this court's review of the Court of Appeals' decision, arguing K.S.A.
60-404 only requires a "timely" objection and he timely objected by filing a motion to
suppress. According to Kelly, a subsequent objection during trial was unnecessary
because the issue of guilt was submitted to the trial judge on the basis of stipulated facts.
In other words, there was no new evidence relating to the suppression issues and no
opportunity for the trial judge to hear anything that would cause the pretrial ruling to
change.
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This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and
K.S.A. 22-3602(e).

ANALYSIS

This court's decision in King, 288 Kan. 333, which served as the basis of the Court
of Appeals' summary affirmation of Kelly's convictions, considered the application of
K.S.A. 60-404, which states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."

Although the statute is worded in terms of an objection that is "timely interposed,"
caselaw frequently uses the term "contemporaneous objection" to describe the
preservation requirement. In King, using the term "contemporaneous-objection rule" to
refer to K.S.A. 60-404, we explained the purpose of the rule, stating:

"[T]he objection requirement is a 'salutary procedural tool' that gives the district court 'the
opportunity to conduct the trial without using . . . tainted evidence, and thus avoid
possible reversal and a new trial.' [This court has] . . . noted that the contemporaneous-
objection requirement is 'practically one of necessity if litigation is ever to be brought to
an end.' [Citation omitted.]" King, 288 Kan. at 342.

Other statutory provisions are also aimed at reducing the risk of presenting tainted
evidence at trial. One of these provisions, K.S.A. 22-3216(3), is particularly relevant in
this case. K.S.A. 22-3216(3) provides that a motion to suppress illegally seized evidence
"shall be made before trial, in the court having jurisdiction to try the case, unless
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opportunity therefor did not exist or the defendant was not aware of the ground for the
motion, but the court in its discretion may entertain the motion at the trial." In
considering the motion to suppress illegally seized evidence, the "judge shall receive
evidence on any issue of fact necessary to determine the motion." K.S.A. 22-3216(2).

We have not viewed the requirements of K.S.A. 60-404 and K.S.A. 22-3216 as
mutually exclusive. This court has generally treated motions to suppress like other
preliminary or in limine orders and held that an objection must also be made at trial in
order to satisfy the requirements of K.S.A. 60-404, even though a pretrial ruling has been
obtained. E.g., State v. Houston, 289 Kan. 252, 270-71, 213 P.3d 728 (2009).

In Houston, we explained the reasons for requiring an objection at trial, stating, in
part:

"Among other advantages, this holding allows a court to rule on the evidence before trial,
but after hearing how the evidence unfolds during trial, allows the court to be prepared—
after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States,
469 U.S. 38, 41-42, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (in limine ruling 'is subject
to change when the case unfolds')." Houston, 289 Kan. at 270.

We have also explained that a pretrial ruling is not sufficient because the "materiality of
the proposed evidence may not become actually apparent until other evidence has been
admitted." State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989); but see State v.
Hollingsworth, 289 Kan. 1250, 1260-61, 221 P.3d 1122 (2009) (Johnson, J., dissenting)
(noting that K.S.A. 60-404 does not require a defendant to renew an objection at trial). In
other words, a pretrial objection by itself is not timely because the evidence may be
different from that submitted at the pretrial hearing or the evidence may be viewed
differently by the judge in the context of all of the evidence and argument heard at trial.

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As we explained in more detail in Bogguess, this court had not previously
considered whether these same considerations apply when a case is tried on stipulated
facts to a judge. We concluded they did not. In doing so, we explained that when a case is
tried solely on stipulated facts, there is no basis for the judge to reconsider a pretrial
ruling because the defendant has waived the right to dispute the evidence. Bogguess, 293
Kan. at 745 (citing State v. Downey, 27 Kan. App. 2d 350, 359, 2 P.3d 191, rev. denied
269 Kan. 936 [2000]). Hence, the trial judge does not have the opportunity to reconsider
the pretrial ruling. Additionally, because no witness testifies, the evidence will not unfold
in a manner different from that already considered. In essence, the record at the time of
the threshold consideration is the only record that will be made on the issue. As a result,
requiring a trial objection would be futile, and the pretrial objection is a timely interposed
objection that is sufficient to preserve the issue for appeal under K.S.A. 60-404.
Bogguess, 293 Kan. at 747.

At oral argument, the State recognized the recent holding in Bogguess but argued
we should not extend the holding beyond the facts in that case or those in State v.
Bastian, 37 Kan. App. 2d 156, 150 P.3d 912 (2007), in which the Court of Appeals had
reached the same holding as this court reached in Bogguess. There are three potential
distinctions between Bogguess, Bastian, and this case: (1) in Bogguess and Bastian, one
judge presided over both the pretrial motion to suppress and the trial as compared to this
case where a different judge handled each stage; (2) Bogguess' counsel explicitly
mentioned a desire to appeal as a reason Bogguess was waiving the right to trial by jury,
but Kelly's counsel did not; and (3) at sentencing, Bogguess' counsel mentioned the plan
to appeal the suppression ruling, but Kelly's counsel did not. We conclude none of these
differences are significant to the holding in Bogguess or Bastian or to the rationale
supporting the holding.

First, having more than one judge involved does not change the fact that a trial
judge considering stipulated facts does not have the opportunity to reconsider a pretrial
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suppression ruling. A defendant's stipulation precludes a defendant from asking the trial
judge to suppress evidence because a defendant has agreed the evidence can be admitted
and considered. Bogguess, 293 Kan. at 745; Downey, 27 Kan. App. 2d at 359. As a result,
a trial objection would be unnecessary—as opposed to being timely interposed as
required by K.S.A. 60-404—because it would contradict the stipulation.

The second difference between Bogguess and this case is that Bogguess' counsel
specifically stated that Bogguess did not want to put the victim's family through a trial
but wanted to appeal. Because the same judge presided over all the proceedings in
Bogguess, the judge was aware of these statements. In contrast, in Kelly's case,
immediately after a district judge denied Kelly's pretrial suppression motion, Kelly's
counsel advised the judge that she had told the prosecutor before the suppression hearing
that "if the Motion to Suppress was not successful, that we intended to waive the jury
trial." Kelly's counsel then asked the district judge to make a record of the waiver and to
set the matter for bench trial. Counsel did not mention a plan to appeal.

The differences in the statements made by Bogguess' counsel as opposed to those
made by Kelly's counsel are not significant to our analysis. It is not necessary to make an
announcement during trial that an appeal is planned in order to preserve a right to appeal
an issue. Moreover, while Kelly's counsel could have announced this intent at trial,
counsel still could not have asked the trial judge to suppress the evidence after Kelly had
stipulated to its consideration. Further, there is no indication anyone was misled as to the
purpose of the proceeding or the intent to preserve appellate rights.

Kelly, like Bogguess and innumerable other defendants proceeding to trial on
stipulated facts, understood a conviction was almost certain. Yet, electing to have a bench
trial preserved Kelly's right to appeal the motion to suppress and any other legal issues
without a jury trial. In contrast, had Kelly waived his right to a jury trial by entering a
guilty or no contest plea, he would have waived his right to appeal most issues relating to
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his convictions, including the suppression issues. See K.S.A. 2011 Supp. 22-3602(a)
("No appeal shall be taken by the defendant from a judgment of conviction before a
district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other
grounds going to the legality of the proceedings may be raised by the defendant as
provided in K.S.A. 60-1507."). Because of the limitations on the right to appeal imposed
by K.S.A. 2011 Supp. 22-3602(a), exercising a right to a bench trial on stipulated facts is
commonly understood to be a mechanism to preserve legal issues for appeal in a situation
where there are no factual defenses or, at least, no factual defenses that are likely to
succeed. Given the foreseeability of conviction, a defendant makes the decision to forego
the expense and rigors of a jury trial while preserving legal issues for appeal. Ironically,
the Court of Appeals' decision in this case exposes Kelly to additional costs and burdens
by setting up the scenario where Kelly will be required to pursue a K.S.A. 60-1507 claim
of ineffective assistance of counsel for failing to preserve the suppression issue and then
pursue the legal issue. These additional burdens are not required by K.S.A. 60-404 where
a timely objection had been made and the purpose of the procedure was understood.

The final difference between Bogguess and this case relates to statements made or
not made at the time of sentencing. At Bogguess' sentencing hearing, his counsel stated,
"I would just like to reiterate our objection to the inclusion of his statements in any of the
Court's decision making." Bogguess, 293 Kan. at 745. Counsel again stated he was trying
to preserve the motion to suppress. In contrast, at Kelly's sentencing hearing, his counsel
did not make a similar statement. The sentencing judge in this case, who was a different
judge than the one who heard the motion to suppress or the one who conducted the trial,
stated: "[Y]ou had a bench trial in this case and there are some appeal rights that you
have that are your right to pursue if you wish." This review of rights was generic,
however, and not specifically tied to the suppression issue as it was at Bogguess' hearing.

Again, however, this procedural difference is not relevant to the reasons we have
held the objection need not be restated at trial. Granted, we have considered posttrial
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motions timely in some circumstances. For example, in State v. Gordon, 219 Kan. 643,
652, 549 P.2d 886 (1976), superseded by statute on other grounds as stated in State v.
Murry, 271 Kan. 223, 21 P.3d 528 (2001), we concluded an objection stated after a bench
trial but before the judge had ruled was timely interposed because "the spirit if not the
letter of the contemporaneous objection rule was satisfied." In Bogguess' case, however,
the trial court had found him guilty before the objection was restated at the sentencing
hearing. Consequently, an objection to trial evidence stated at sentencing was not timely.

In summary, there is no persuasive basis to reach a result in this case that differs
from the result in Bogguess. Consequently, we hold that Kelly timely interposed an
objection to the admission of evidence by filing a pretrial motion to suppress illegally
obtained evidence, and in doing so he satisfied the requirements of K.S.A. 60-404 despite
his failure to reiterate the basis of his motion during the bench trial on stipulated facts.
Consequently, we reverse the Court of Appeals' decision to summarily affirm Kelly's
convictions. We remand Kelly's appeal to the Court of Appeals for consideration of
whether the district judge erred in denying his motion to suppress.

Reversed and remanded to the Court of Appeals with directions.

* * *

NUSS, C.J., dissenting: I respectfully dissent. For more than 100 years Kansas
appellate courts have required timely and specific objections to the admission of
evidence. See Brumbaugh v. Schmidt, 9 Kan. 117, 119 (1872) ("An objection was made
at the time of the taking of the depositions, but was not brought to the attention of the
court, and is therefore deemed to have been waived."); Ogden v. Walters, 12 Kan. 282,
291 (1873) (because evidentiary objections on appeal were different than those made at
trial, "we shall entertain no such objection made for the first time now").

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K.S.A. 60-404 is a codification of this caselaw. State v. Freeman, 195 Kan. 561,
564, 408 P.2d 612 (1965), cert. denied 384 U.S. 1025 (1966). The statute's rule of
"contemporaneous objection" serves two primary purposes. 195 Kan. at 564. First, it
gives the trial court the opportunity to conduct the trial without using the tainted
evidence, and thus avoid possible reversal and a new trial. State v. King, 288 Kan. 333,
342, 204 P.3d 585 (2009). Second, it preserves the issue on appeal. Freeman, 195 Kan. at
564 ("As a corollary to the [contemporaneous objection] rule, objections to the
admissibility of evidence will not for the first time be considered on appeal."). As the
Freeman court described these two purposes of the requirement: "The rule is a salutary
procedural tool serving as a valuable aid in the orderly disposition of cases at the trial
level. It also has a legitimate purpose in the appellate court, whose function is that of
review rather than trial de novo." 195 Kan. at 564.

Because of the contemporaneous objection rule, for years our caselaw has also
required that after denial of a pretrial motion to suppress, the moving party must still
object to introduction of the evidence at trial to preserve the issue for appeal. State v.
Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009). Per this requirement, Kansas courts
have rejected a party's claim of compliance with the contemporaneous objection rule and
refused appellate review—when the objection was renewed just before the jury was
sworn (State v. Jones, 267 Kan. 627, 637-38, 984 P.2d 132 [1999], abrogated by State v.
Deal, 293 Kan. 872, 269 P.3d 1282 [2012]), and when renewed as the State rested its
case (State v. Daniels, 28 Kan. App. 2d 364, 369, 17 P.3d 373 [2000], rev. denied 272
Kan. 1420 [2001]).

Similarly, for years our court even has required that a party who has obtained an in
limine order excluding evidence nevertheless must still object at trial to an opponent's
efforts to violate the order and introduce that prohibited evidence. Otherwise, the issue is
not preserved for appeal. State v. Moncla, 262 Kan. 58, 66, 936 P.2d 727 (1997) (based
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upon contemporaneous objection rule of K.S.A. 60-404); see State v. Miller, 293 Kan.
535, 549, 264 P.3d 461 (2011).

With this historic background of generally requiring strict compliance with the
contemporaneous objection rule, we proceed to Kelly's stairstep progression: (1) filing a
motion to suppress evidence; (2) denial of his motion by the court; (3) waiver of his right
to jury trial; (4) participating in a bench trial 5 weeks later conducted by a different judge
exclusively on Kelly's stipulated facts; but (5) without Kelly's renewed objection or any
indication of his intent to preserve the suppression issue, e.g., for appeal.

Kansas has no caselaw directly on point. But the Fifth Circuit Court of Appeals
does. In United States v. Garcia-Ruiz, 546 F.3d 716 (5th Cir. 2008), defendant filed a
motion to suppress evidence obtained as a result of his detention and later arrest. After
denial of his motion, he pled not guilty, waived his right to a jury, and agreed to a bench
trial on stipulated facts. After conviction, he appealed the denial of his motion to
suppress.

Among other things, the appellate court observed that Garcia-Ruiz did not reserve
a right to appeal when he stipulated to the facts. Accordingly, his "decision to go to trial
on stipulated facts can be viewed as waiver." 546 F.3d at 718 n.1. The Garcia-Ruiz court
sharply contrasted his failure with the defendants in United States v. Mendoza, 491 F.2d
534 (5th Cir. 1974). While those defendants similarly lost a suppression motion, pled not
guilty, and stipulated to all the facts necessary for their conviction, the Garcia-Ruiz court
pointed out: "Despite that stipulation, we allowed the appeal on the merits of the
suppression motion, but only because defendants 'did not withdraw their pleas of not
guilty, and sought to expressly reserve their right to appeal from the order denying the
motion to suppress.'" 546 F.3d at 719 (quoting 491 F.2d at 536).

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The Garcia-Ruiz court observed that another panel of the 5th Circuit viewed the
same question as "one of mootness." 546 F.3d at 718 n.1 (citing United States v. Ramos-
Flores, 233 Fed. Appx. 347, 349 [5th Cir. 2007] [unpublished opinion], cert. denied 552
U.S. 1104 [2008]). In Ramos-Flores, the defendant also lost a motion to suppress, pled
not guilty, waived a jury trial, and agreed to a bench trial on stipulated facts. He appealed
his conviction, arguing error in the denial of his suppression motion.

The Ramos-Flores court noted: "After those stipulated facts were read aloud in
court, the Government and Ramos rested. Neither presented any other evidence; nor did
they present any objections or reservations." (Emphasis added.) 233 Fed. Appx. at 349.
The court rejected defendant's reliance upon Mendoza, 491 F.2d 534, because like the
Garcia-Ruiz court was to later distinguish, the Mendoza court had declared the issue
preserved because defendants there sought "'to expressly reserve their right to appeal
from the order denying the motion to suppress.'" 233 Fed. Appx. at 349 (quoting
Mendoza, 491 F.2d at 536). By contrast, the Ramos-Flores court observed that "Ramos
did not reserve, or otherwise signal, his intent to appeal the partial denial of his
suppression motion." 233 Fed. Appx. at 349. "Accordingly, he rendered this issue moot
with his stipulated facts." (Emphasis added.) 233 Fed. Appx. at 349-50.

Similarly, in State v. Davis, 224 Neb. 205, 397 N.W.2d 41 (1986), the Nebraska
Supreme Court refused to reach the merits of defendant's suppression issue because he
waived any alleged trial court error: "Although Davis had earlier reserved his objection
to the court's ruling on his motion to suppress, when the court again overruled his motion
at trial, he stipulated without objection to the facts upon which the conviction was based."
(Emphasis added.) 224 Neb. at 209.

Georgia appellate courts follow the same rationale. In Sanders v. State, 252 Ga.
App. 609, 556 S.E.2d 505 (2001), and Scott v. State, 201 Ga. App. 162, 410 S.E.2d 362
(1991), the defendants' motions to suppress were denied, they pled not guilty and agreed
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to bench trials on stipulated facts where they were found guilty. The appellate courts held
the defense challenges to venue (Sanders) and to sufficiency of the evidence (Scott) were
knowingly waived. These issues were unpreserved because the record revealed
defendants and counsel led the court and the State to believe the only contested issue at
the trial, and that defendants wanted preserved for appeal, was whether evidence should
be suppressed.

The Kansas appellate decision closest to these scenarios—and where the
contemporaneous objection rule was applied to stipulated facts—is State v. Synoracki,
253 Kan. 59, 853 P.2d 24 (1993). There, both the State and defendant filed motions in
limine: the State to admit evidence of defendant's prior convictions and defendant to
exclude them. Just prior to the trial's opening statements, the district court ruled that one
conviction was admissible. Per the court's suggestion, the parties then entered into a
written stipulation to present the conviction evidence. Defendant agreed to its form but
continued to object to its admissibility on relevance grounds.

During the State's cross-examination of defendant, the "questions and answers
reflected the basic information set forth in the stipulation." 253 Kan. at 68. Defendant did
not object. At the instruction conference, the court combined the stipulation with the
instruction limiting the jury's consideration of the conviction to defendant's intent. It
noted: "The admissibility of the prior conviction was objected to by the defense, and I
don't see that as being waived, the parties agree this is the way that the facts will be put in
front of the jury." 253 Kan. at 68.

On appeal, defendant argued the cross-examination questions about his prior
conviction violated K.S.A. 60-421 (disallows attack on defendant credibility through
conviction until he or she introduces evidence of good character). This court rejected his
argument for a number of reasons, several of which are of guidance here.

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The Synoracki court began by addressing defendant's argument that the stipulation
had never been introduced into evidence. It held: "Whether the stipulation was admitted
into evidence or needed to be admitted into evidence is not determinative." 253 Kan. at
69. The court continued on this theme: "In any event, counsel for the defendant and the
State agreed to proceed in the manner they did [with stipulation] and it is no more
detrimental to the defendant to have the stipulation introduced one way than it is the
other." 253 Kan. at 70.

Accordingly, this court first found that "[t]he information contained in the
stipulation was admitted into evidence during the State's cross-examination of the
defendant and the defendant concedes that there was no contemporaneous objection to
the State's cross-examination." 253 Kan. at 69. Second, the court found defendant "also
did not request a continuing objection when his motion in limine was denied. 'When a
motion in limine is denied, the moving party must object to the evidence at trial to
preserve the issue on appeal.' [Citation omitted.]" 253 Kan. at 69-70.

The Synoracki court ended its analysis by observing that "'[t]the admission of
evidence, even if erroneous, may not be raised as an issue on appeal unless there appears
of record a timely objection so stated as to make clear the specific ground of the
objection.' State v. Arrington, 251 Kan. 747, Syl. ¶ 4, 840 P.2d 477 (1992); see K.S.A.
60-404 (contemporaneous objection rule)." (Emphasis added.) 253 Kan. at 70. Although
the defendant had twice objected—first with his motion in limine and then again when
the stipulation was prepared after his motion was denied just prior to opening
statements—this court determined the suppression issue had not been preserved because
no further objection had been made at trial.

In my view, Synoracki instructs that when a defendant's motion in limine to
exclude evidence is denied, and the same evidence is presented through a stipulation for
15

the finder of fact to consider, the defendant must still object to the evidence when offered
at trial. If not, the evidentiary issue is not preserved for appeal.

None of these cases, including Synoracki, addressed the need for a pretrial
objection to be renewed at trial so the judge can be given a chance to reconsider the
ruling—whether, as the majority points out, because the evidence may be different at trial
from the pretrial hearing's, or because the evidence may be viewed differently by the
judge in the context of all the trial evidence and argument. This omission suggests the
courts' primary concern is with preservation of the issue. See Freeman, 195 Kan. at 564
("As a corollary to the [contemporaneous objection] rule, objections to the admissibility
of evidence will not for the first time be considered on appeal.").

This caselaw inherently emphasizes the defendant's change to a diametrically
opposite position. The defendant is no longer vigorously fighting to exclude the facts but
now actively promoting the admission of those same facts into evidence—without
objection or reservation. As the majority points out, by the defendant's stipulation he or
she "has agreed the evidence can be admitted and considered" and has "waived the right
to dispute" it. Slip op. at 6-7. This is in clear contrast to the defendant who, after denial of
a motion to exclude evidence, simply renews his or her objection at trial—without
agreeing, through stipulation, to those facts. See, e.g., Jones, 267 Kan. at 637-38.

Under these circumstances, a stipulation unaccompanied by a timely objection can
not only constitute waiver (Garcia-Ruiz, 546 F.3d 716), mootness (Ramos-Flores, 233
Fed. Appx. 347), or general failure to preserve (e.g., Synoracki, 253 Kan. 59). But it also
can approach acquiescence to the ruling and the ultimate judgment of conviction, as
evidenced by In re Care and Treatment of Perez, No. 90,727, 2004 WL 1609123 (Kan.
App. 2004) (unpublished opinion). There, "Perez wished to stipulate to the report from
Larned State Hospital, in lieu of trial, and have the court rule whether Perez was a
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sexually violent predator." (Emphasis added.) Perez, 2004 WL 1609123, at *1. The court
then ruled Perez was a sexually violent predator and committed him to that hospital.

Perez later filed a motion to dismiss, arguing the district court lacked jurisdiction
because he had not been brought to trial within 60 days of the probable cause hearing as
required by K.S.A. 59-29a06. In affirming the district court's denial of his motion, the
Court of Appeals held, inter alia:

"That stipulation amounted to an acquiescence in the court's judgment.
Our Supreme Court has ruled that '[t]he respondent's consent and stipulation that
he is a sexually violent predator amounts to his acquiescence in the judgment
entered.' In re Care and Treatment of Satthoff, 272 Kan. 219, 220, 32 P.3d 1173
(2001). All of the grounds raised in Perez' motion to dismiss made prior to his
stipulation were swept away with his consent to the judgment." 2004 WL
1609123, at *3.

Whatever the legal label, the failure to renew the objection effectively bars
bringing the issue on appeal to this court. See Freeman, 195 Kan. at 564. This renewal
requirement is similar to a number of our rules where compliance is required to establish
preservation of issues, from trial through the last stages of appeal. Among these are a
waiver and preclusion of appellate review due to: (1) a failure to raise an issue at the
lower court (State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 [1980]); (2) a failure to
include the trial-raised issue in an appellate brief (State v. Bryant, 272 Kan. 1204, 1208,
38 P.3d 661 [2002]; and (3) a failure to include the previously-preserved issue in the
petition for review from the Court of Appeals to the Supreme Court (Supreme Court Rule
8.03[a][5][c] [2011 Kan. Ct. R. Annot. 69] and State v. Allen, 293 Kan. 793, 795, 268
P.3d 1198 [2012]).

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This brings me to State v. Bogguess, 293 Kan. 743, 268 P.3d 481 (2012). Its
language clearly reveals everyone—defense counsel, the State, and the court—knew
exactly what defense counsel was doing and why. After reviewing the explicit statements
made by defense counsel before or at the bench trial and later made by defense counsel
and the court at sentencing, we suggested both from these clear expressions of intent and
the State's lack of objections to them that "everyone involved with this case knew which
appellate rights Bogguess intended to reserve in his stipulation." 293 Kan. at 746.
Defense counsel expressly stated Bogguess "wishes to retain his appeal rights. That's why
we are proceeding [in] this way." 293 Kan. at 745. The judge conducting the trial
"restate[d] the reservation of appellate rights," i.e., "would I be correct in assuming that
you are orally renewing all previous motions concerning the statements made by Mr.
Bogguess during his interrogation or interview" by law enforcement "and seeking to
preserve all issues of that for appeal?" 293 Kan. at 745-46.

In this respect, our holding in Bogguess is entirely consistent with Mendoza, 491
F.2d 534, where defendants sought "'to expressly reserve their right to appeal from the
order denying the motion to suppress.'" United States v. Ramos-Flores, 233 Fed. Appx. at
349 (quoting 491 F.2d at 536.) And Bogguess is further consistent with Scott v. State, 201
Ga. App. 162, where "the defense attorney made it clear to both the prosecuting attorney
and the trial judge that her main goal in defending this case was to preserve for appeal the
denial of defendant's motion to suppress." 201 Ga. App. at 163. And where the State
agreed that the purpose of the bench trial on stipulated facts was "'to preserv[e] the
motion to suppress as an appellate issue.'" 201 Ga. App. at 162-63.

Bogguess is also entirely consistent with Sanders v. State, 252 Ga. App. 609.
There, the defendant preserved the suppression issue because the record revealed that
defendant and his attorneys led the court and the State to understand that the only
contested issue at trial had been whether the stipulated evidence should be suppressed
18

and that defendant agreed that the "issue he wished to preserve for appeal was that of the
sufficiency of the warrant affidavit to establish probable cause." 252 Ga. App. 2d at 615.

Language expressing such preservation intent by Kelly, and expressing a
preservation understanding by the State and the court, is entirely lacking in Kelly's case.
Even Kelly concedes in his petition for review that it "does not appear from the record of
the trial that anything was specifically said by trial defense counsel or included in the
stipulation to object to the items that were the subject of the motion to suppress." The
most Kelly can point to is the trial judge's statement that he had "review[ed] the content
of the court file." The judge certainly did not address the suppression motion denied 34
days earlier by a different judge. He simply looked at the facts in the two stipulated
exhibits and found Kelly guilty.

The majority would disregard Kelly's failures because he was purportedly doing
what, according to the majority, stipulating defendants generally intend to do. For
example, it states that "exercising a right to a bench trial on stipulated facts is commonly
understood to be a mechanism to preserve legal issues for appeal." Slip op. at 8. It further
speaks of the resultant "foreseeable[e]" conviction that causes the defendant to decide to
"forego the expense and rigors of a jury trial while preserving legal issues for appeal" and
that "the purpose of the procedure was understood." Slip op. at 8. It further contends that
"there is no indication anyone was misled as to the . . . intent to preserve appellate
rights." Slip op. at 7.

I have no quarrel with an acknowledgment of why defendants might, or even
usually, stipulate to facts. But concluding that Kelly was stipulating for the specific and
sole purpose of preserving his legal issue for appeal is unwarranted because it is not
supported by the record. Defendants can stipulate for reasons other than a timely appeal.
For example, in In re Care and Treatment of Sipe, No. 91,064, 2004 WL 1716207 (Kan.
App. 2004) (unpublished opinion), prior to Sipe's completion of his prison term, and with
19

trial pending, he stipulated to the State's petition seeking to declare him a sexually violent
predator and to involuntarily commit him for treatment following his prison sentence. He
was found to be a sexually violent predator and ordered into the custody of the
Department of Social and Rehabilitation Services for control, care, and treatment "until
such time as he is safe to be at large." Sipe, 2004 WL 1716207, at *1. Despite his
stipulation, Sipe did not appeal. Instead, he waited 3 years and filed a motion to dismiss
the State's petition, arguing the district court erred by continuing his case past the
statutory 60-day limit for conducting the trial after the probable cause hearing.

And as evidenced by State v. Houston, 289 Kan. 252, 213 P.3d 728 (2009), even
when all counsel and the court might understand what a defendant might want to do, any
mutual understanding still does not relieve the defendant of the requirement to expressly
preserve an issue. There, we refused appellate review when the motion to suppress a
witness' testimony was argued the morning of trial; the court did not deny the motion
until after the morning trial break, stating, "'Court would note that it's over the defendant's
objection;'" and the objectionable witness testified that afternoon absent objection
renewal. We held in Houston that if the court's intent by the comment "it's over the
defendant's objection" was unclear, Houston's counsel should have asked for clarification,
e.g., "'[W]ill an objection still be required at the time the testimony is offered during
trial?' In the alternative, counsel should have asked for a continuing objection and thereby
eliminated the need for the later trial objection." 289 Kan. at 271.

The majority's supposition about why Kelly was stipulating to the facts also
contradicts one of the principal purposes behind the contemporaneous objection rule: to
provide the necessary specificity and thus certainty in evidentiary issues for the trial and
appellate courts. See K.S.A. 60-404 (objection must be "so stated as to make clear the
specific ground of objection"). Accordingly, we have rejected a party's efforts to object to
the admission of evidence on one basis to the trial court and argue a different basis on
appeal. See Houston, 289 Kan. at 269. And we have held that making a timely and
20

specific objection of "'stating facts not in evidence'" at trial is nevertheless insufficient to
preserve hearsay and confrontation issues for appeal because the three are not
equivalents. State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011) (while there
may be some overlap of objections, that overlap does not satisfy the specificity
requirement of the objection); Bryant, 272 Kan. at 1208 (hearsay objection at trial not
sufficient to raise issue of Confrontation Clause violation on appeal).

The majority correctly observes that Kelly was not required to announce his
intention of preserving the issue for appeal while at trial because filing the notice of
appeal of a conviction is done posttrial. But this misses the point. In Bogguess we
determined the defendant met the contemporaneous objection rule only because he, the
court, and the State all had given substitute indicators that he wished to preserve an issue
for appeal—not to suggest that his formal notification of appeal was required at that time.

Finally, in Bogguess we stated: "[W]hen the bench trial is conducted by the same
judge who presided over the hearing on the motion to suppress, there is no reason to
rehash the same arguments when no additional evidence has been presented." 293 Kan. at
747. Here, by contrast, there is a different judge conducting the bench trial—almost 5
weeks after the original judge denied the suppression motion. Consequently, the "same
arguments" rejected by the first judge could very well be persuasive to the second one.
As the Court of Appeals has stated:

"[A] court retains the inherent power to review its own proceedings to correct
errors or prevent injustices until a final judgment is entered. Connell v. State
Highway Commission, 192 Kan. 371, 376, 388 P.2d 637 (1964); Weber v. Wilson,
187 Kan. 214, 215, 356 P.2d 659 (1960). The court retains that power even when
the same issue is presented to a different judge of the same court in the same case.
Although factual issues may be particularly unsuitable for reconsideration, legal
issues are more suitable. See 18 Wright, Miller & Cooper, Federal Practice and
21

Procedure: Jurisdiction § 4478 (1981)." (Emphasis added.) City of Wichita v.
Rice, 20 Kan. App. 2d 370, 376, 889 P.2d 789 (1995).

See also State v. King, 180 Ariz. 268, 279, 883 P.2d 1024 (1994) (law of the case
doctrine does not prevent "a different judge, sitting on the same case, from reconsidering
the first judge's prior, nonfinal rulings").

Because I dissent from the majority's dilution of the contemporaneous objection
rule as analyzed by this court in State v. Bogguess, filed 8 months ago, I would affirm the
Court of Appeals and the district court.

BILES and MORITZ, JJ., join in the foregoing dissent.