State v. Cada

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NOT DESIGNATED FOR PUBLICATION

No. 111,440

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEE ROY CADA,
Appellant.


MEMORANDUM OPINION

Appeal from Cloud District Court; KIM W. CUDNEY, judge. Opinion filed January 29, 2016.
Appeal dismissed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Robert A. Walsh, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BUSER and GARDNER, JJ.

ATCHESON, J.: In November 2013, a jury sitting in Cloud County District Court
convicted Defendant Lee Roy Cada of one count of aggravated criminal sodomy based
on his sexual abuse of his common-law wife's 5-year-old granddaughter. Cada has
appealed the jury's verdict and the resulting sentence of life in prison on multiple
grounds. Before going further, we point out that Cada has served his sentence. He died in
prison in September 2014, about a month after his appellate brief was filed. Under
Kansas law, however, this appeal survives him only for limited purposes. See State v.
Hollister, 300 Kan. 458, 458-49, 329 P.3d 1220 (2014).

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Historically, the Kansas appellate courts have considered all issues a criminal
defendant raised on appeal even if he or she died during the pendency of the appeal. State
v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990); State v. Jones, 220 Kan. 136, Syl. ¶ 1,
551 P.2d 801 (1976). In that respect, Kansas stood in the minority camp. See Hollister,
300 Kan. at 465-66. Building on expressions of dissatisfaction in more recent cases with
such a sweeping rule, the Hollister court recently reexamined the rule's utility and found
it wanting.

The Hollister court tempered the old rule with well-accepted mootness principles
to considerably narrow the sort of issues that ought to be reviewed in a criminal
defendant's direct appeal after he or she has died. 300 Kan. at 467. A court may consider
an appellate issue in that circumstance if it presents a matter of statewide importance or
significant public policy, it "remains a real controversy," or it would likely be replicated
in other cases. 300 Kan. at 467. In making that assessment, a court should consider
whether a ruling on the issue favoring the deceased defendant would result in his or her
exoneration. Thus, for example, an appellate court ought to review a challenge to the
sufficiency of the evidence supporting a conviction because a favorable determination
would require the conviction be reversed and the charge be dismissed—a ruling
"clear[ing] [the defendant's] name." 300 Kan. at 467. Conversely, fact-laden issues that,
at best, would result in reversal and remand for a new trial should be discarded on appeal
as moot.

With the Hollister standards in mind, we dispense with a factual narrative of the
evidence, including the abusive acts described by K.L., the victim. Rather, we consider
whether the issues on appeal fit within the criteria for continued appellate review.

Cada asserted three challenges to the jury verdict. First, he contended the district
court improperly limited cross-examination of the victim's mother about falsely reporting
that she herself had been sexually abused years ago. Next, he argued for the first time on
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appeal that the district court should have given the jury a unanimity instruction, since
K.L. recounted more than one instance of sexual abuse constituting aggravated criminal
sodomy. Finally, he submitted the prosecutor's closing argument unfairly prejudiced him
by improperly commenting on witness credibility, appealing to the jurors' sympathy for
K.L., and diluting the State's burden of proof.

None of these issues, even if successfully argued on appeal, would result in Cada's
exoneration. At best, singularly or collectively, they would have deprived him of a fair
trial, and his relief would have been a new trial. Moreover, the issues were inextricably
tied to the facts of the case and the evidentiary record. None of them turns on a broad
policy question or an important and undecided point of law that could be easily defined
apart from the factual record. In other words, their resolution would require only the
application of settled law to the facts of this case. In sum, Hollister directs us to treat the
issues as moot.

On appeal, Cada also challenged the district court's handling of his posttrial
motions in conjunction with the sentencing hearing. Cada personally filed what
effectively were two motions for a new trial in addition to the motion his appointed
lawyer filed. In his own motions, Cada claimed the district court allowed the jurors to see
him briefly in shackles and outlined various ways he believed his lawyer inadequately
represented him before and during the trial. At the hearing, Cada's lawyer expressly
disavowed those allegations of inadequate representation and explained at some length
why they were unfounded. Cada's lawyer, thus, argued against her own client. And Cada
wound up presenting his own posttrial motions to the district court without the assistance
of counsel.

But, as with the asserted trial errors, the issue before us could not result in an
exoneration of Cada. At best, he would have been entitled to a remand for appointment of
a new lawyer to reargue the posttrial motions. And, in turn, had any of those points been
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successful, Cada would have gotten a new trial. (More than likely, however, the claims of
ineffective assistance of trial counsel would have been denied, since they would have
been more appropriately raised in a habeas corpus motion under K.S.A. 60-1507.) The
issues themselves appear to have been quite fact specific and plowed no new or
unresolved legal ground. Again, they do not fit within the Hollister criteria for
consideration in light of Cada's death.

In conclusion, we find all of the points presented to us are of the type treated as
moot in light of Hollister and its careful reexamination of the standards for deciding the
merits of direct criminal appeals following the death of the defendant. Accordingly, this
appeal is dismissed as moot.