State v. Bogguess

268 P.3d 481, 293 Kan. 743, 2012 Kan. LEXIS 37
CourtSupreme Court of Kansas
DecidedJanuary 20, 2012
DocketNo. 103,245
StatusPublished
Cited by59 cases

This text of 268 P.3d 481 (State v. Bogguess) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bogguess, 268 P.3d 481, 293 Kan. 743, 2012 Kan. LEXIS 37 (kan 2012).

Opinion

The opinion of the court was delivered by

Rosen, J.:

Shannon E. Bogguess requested a bench trial on stipulated facts after his motion to suppress his confession was denied. He was convicted of first-degree murder, aggravated robbery, aggravated kidnapping, aggravated assault, and criminal possession of a firearm. We must first decide whether Bogguess reserved his appellate rights in the stipulation. Because we hold that Bogguess reserved his right to appeal, we must decide whether the district court correctly limited Bogguess’ testimony at the hearing under Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), and whether the district court erred in denying Bogguess’ motion to suppress. Finally, we will briefly address Bogguess’ remaining issues on appeal.

Factual Background

According to the stipulated facts, on May 12, 2008, Bogguess and Kedrin D. Littlejohn went to James Collins’ place of business with a handgun, intending to take money from Collins by force. Bogguess and Littlejohn confronted Collins inside the business. When Collins resisted, Bogguess shot him in the leg. Bogguess and Littlejohn put Collins in one of the Hummer motor vehicles from the business in an attempt to take him to an ATM, where they intended to force him to withdraw cash for them. At some point during the drive, Collins jumped from the moving Hummer into the street. When Bogguess and Littlejohn were unable to force Collins back into the vehicle, Bogguess shot Collins in the neck/ shoulder area.

Jeremy Linot saw the confrontation in the street and ran to help Collins get out of the road. Linot was forced to retreat from his attempt to assist Collins when the Hummer turned around and drove back down the street toward him. Linot testified at the preliminary hearing that he feared that he and Collins were going to [745]*745be run over or shot. Collins was struck by the Hummer and pronounced dead at the scene.

Linot and other witnesses described Bogguess and Littlejohn as “a Hispanic male or a light-skinned black male” and “a black male.” Video surveillance from a restaurant showed the pair running through a parking lot. Bogguess and Littlejohn gave statements to the police varying only in Bogguess’ intention in shooting Collins the second time and who had control of the vehicle when Collins was run over. When Bogguess was located by Wichita police officers, he had numerous credit cards and other identification belonging to Collins. He also had property purchased that day using Collins’ credit cards.

Other than the stipulated facts, no evidence was presented at the bench trial. The trial court found Bogguess guilty on all counts. Bogguess was sentenced to life without the possibility of parole for 25 years on the murder conviction, plus a consecutive 631 months’ imprisonment on the remaining convictions. He timely appeals. Further facts will be presented as necessary for the analysis.

Reservation of Appellate Rights

By entering into a stipulation of facts, the defendant is precluded from disputing the factual evidence contained in the stipulation. State v. Downey, 27 Kan. App. 2d 350, 359, 2 P.3d 191, rev. denied 269 Kan. 936 (2000).

Although the case was scheduled for a jury trial, Bogguess elected to proceed with a bench trial on the stipulated facts. Bog-guess’ counsel stated, “Your Honor, Mr. Bogguess does not wish to put the family through a trial, and he wishes to retain his appeal rights. That’s why we are proceeding this way, and we are in fact ready to proceed.” At sentencing, Bogguess’ counsel clarified which issues he wished to reserve for appeal, saying:

“I would just like to reiterate our objection to the inclusion of his statements in any of the Court’s decision making. Again, we are trying to preserve those issues for appeal as we have filed a motion to suppress his statements and of course that holds for the bench trial and all that as well.”

The judge then restated the reservation of appellate rights:

[746]*746“And I certainly don’t mean to second guess you on this, Mr. Mueller, but in an abundance of caution, 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 both Detectives FatMn and Craig and seeking to preserve all issues of that for appeal?”

The State did not object to Bogguess’ counsel’s clarifications or the court’s observations, suggesting that everyone involved with this case knew which appellate rights Bogguess intended to reserve in his stipulation. On appeal, the State complains that there was no contemporaneous objection during the bench trial as required by K.S.A. 60-404 and that the stipulation of facts did not specifically reserve Bogguess’ right to appeal the trial court’s rulings at the Jackson v. Denno hearing or decision on tire motion to suppress.

We have not considered this issue, but several Court of Appeals cases have allowed review of a decision on a motion to suppress despite the lack of a contemporaneous objection during a bench trial on stipulated facts. In State v. Mansaw, 32 Kan. App. 2d 1011, 1014, 93 P.3d 737, aff'd 279 Kan. 309, 109 P.3d 1211 (2005), the Court of Appeals stated:

“The written stipulation of facts submitted by the parties did not indicate that Mansaw was preserving the objections raised in his suppression motion. . . . [Hjowever, the record reflects that the district court specifically advised Mansaw that he was not waiving his right to appeal the ruling on the suppression motion by agreeing to the trial upon stipulated facts. Accordingly, we find that Mansaw has properly preserved this issue for appeal.”

In State v. Robinson, No. 90,113, 2004 WL 835866 (Kan. App. 2004) (unpublished opinion), the Court of Appeals put it this way:

“Here, Robinson properly filed her motion to dismiss, which was denied. However, when the State indicated it was asking the court to accept tire suppression hearing testimony as evidence in the bench trial, diere was no objection made by the defense. As a result, the State claims this court should not reach the merits of this case and dismiss for lack of jurisdiction.
“Jurisdictionally, this case presents an unusual series of events. Most certainly, there was no objection to the evidence presented during die bench trial. However, this statement begs the question since the State did not present any evidence at the bench trial other than to request the court to adopt die evidence from the motion to suppress heard literally moments earlier. The purpose of the contemporaneous objection rale is for the district court to rule on the suppressed evidence at trial and to reexamine the evidence and consider how the evidence has [747]*747played out. This purpose seems futile in the present situation. We will address Robinson’s claims.” Robinson, 2004 WL 835866, at *3.

In State v. Bastian, 37 Kan. App. 2d 156, 159-60, 150 P.3d 912

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Cite This Page — Counsel Stack

Bluebook (online)
268 P.3d 481, 293 Kan. 743, 2012 Kan. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bogguess-kan-2012.