by Douglas Ankney

The Supreme Court of Kansas affirmed a judgment of the Court of Appeals (“COA”) that reversed Danny W. Queen’s convictions for intentional second-degree murder; attempted second-degree murder; and attempted voluntary manslaughter, due to a violation of his statutory right to a speedy trial. All charges against Queen were dismissed.

After Queen was kicked out of a bar in Eudora, he shot and killed a bouncer, Bo Hobson. Queen then attempted to shoot two additional people, but his gun jammed. Several bar patrons then beat him into unconsciousness, restraining him until police arrived.

The State charged Queen with premeditated first-degree murder and two counts of attempted first-degree murder. He was arraigned October 31, 2017, and pleaded not guilty to all charges. Unable to post bail, he remained in custody. After discussing with the attorneys probable scheduling difficulties due to spring break, the Douglas County District Court judge stated the “speedy trial would run April 30th.” After more discussion, the judge asked, “Counsel, will you check your availability for April 2nd that week?”

The State responded, “That’s fine with the State.” Defense Counsel then answered, “Monday, April 2nd? That works for the defense, Your Honor.” After scheduling the April trial date, no party requested a continuance.

But the judge and the prosecutor had incorrectly stated that the speedy trial deadline was April 30. The correct deadline was March 30th. On the morning of the April 2 trial date—153 days after arraignment—Queen filed a motion to dismiss with prejudice based on a speedy trial violation. Since Queen had continually been in custody, he argued that the State had 150 days after arraignment to bring him to trial or the speedy trial statute required the court to release him from custody.

The district court judge denied the motion to dismiss. The judge acknowledged the error in stating that April 30th was the speedy trial date but faulted defense counsel for failing to correct the error. The judge also said the crowded docket exception allowed the court to extend the speedy trial period. However, the judge admitted that had the court been aware of the correct speedy trial date, the schedule could have been rearranged to accommodate Queen’s trial. The judge rescheduled Queen’s trial. Upon the jury’s guilty verdicts, Queen was sentenced to 226 months in prison and 36 months of post-release supervision,

Queen appealed. A panel of the COA reversed the district court’s denial of the motion to dismiss, ruling that no statutory exceptions applied to extend the speedy trial deadline. The COA also noted that the speedy trial statute unambiguously directs courts to discharge from liability any person not timely brought to trial, and any further prosecution of Queen on these charges was precluded. The Kansas Supreme Court granted the State’s petition for further review.

The Court observed that Queen relied exclusively on Kansas’ speedy trial statute—K.S.A. 2020 Supp. 22-3402. The statute requires that a defendant who remains in jail be brought to trial within 150 days of arraignment but within 180 days if the defendant is released on bond. State v. Dreher, 717 P.2d 1053 (Kan. 1986). If the State fails to bring the defendant to trial by the deadline, the defendant is “entitled to be discharged from further liability to be tried for the crime.” K.S.A. 2020 Supp. 22-3402(a). Notably, the State has the burden of complying with the time requirement; that is, the defendant is not obligated to assert the right. Dreher. The statute contains exceptions that allow for extensions of the time requirements, e.g., if the defendant causes the delay or the court orders a competency evaluation; if a mistrial is declared; if a continuance is granted due to a problem securing evidence; or if a continuance is granted due to the court’s crowded docket. Because the parties agreed that Queen was in custody, the 150-day speedy trial period of K.S.A. 2020 Supp. 22-3402(a) applied. The parties further agreed that the State did not bring him to trial until 153 days after his arraignment. The only issues properly preserved for appeal were: (1) the district court’s determination that its crowded docket required delay and (2) Queen caused the delay by acquiescing in the trial date.

Kansas’ speedy trial statute begins by stating the State must bring a jailed defendant to trial within 150 days of arraignment “unless the delay shall happen as a result of the application or fault of the defendant or a continuance shall be ordered by the court under subsection (e).” K.S.A. 2020 Supp. 22-3402(a). Subsection (e) provides that “the time for trial may be extended” if, “because of other cases pending for trial, the court does not have sufficient time to” begin the trial within 150 days. “Not more than one continuance of not more than 30 days may be ordered upon this ground.” K.S.A. 2020 Supp. 22-3402(e)(4).

A “continuance” means that a new trial date is set. State v. Diaz,241 P.3d 1018 (Kan. Ct. App. 2010). “Continuance is defined as” the adjournment or postponement of a trial or other proceeding to a future date.” Black’s Law Dictionary (11th ed. 2019). In the instant case, the judge initially set the April 3 trial date. The trial court entered no orders of continuance. Nor did the trial court make any finding that a crowded docket precluded bringing Queen to trial within the 150-day limitation period. The Kansas Supreme Court concluded the crowded-docket exception did not apply.

As to the State’s contention that Queen had caused the delay by acquiescing to the trial date, acquiescence within the context of a speedy trial waiver requires more than passive acceptance of a date offered by the trial court. State v. Adams, 153 P.3d 512 (Kan. 2007). “An accused need not insist upon, nor even ask for a speedy trial, nor need he protest against or object to the delay. Failure to object to continuance is not equivalent either to an application for such continuance or to a consent to the State’s request for a continuance. All that a defendant needs to do to retain the protection of the constitutional guaranty is to refrain from any affirmative act, application or agreement, the necessary and direct effect of which will be to delay the trial.” State v. Hess, 304 P.2d 474 (Kan. 1956). “For acquiescence to result in a waiver of speedy trial rights, the State must demonstrate more than mere passive acceptance and must produce some evidence of agreement to the delay by the defendant or defense counsel.” State v. Vaughn, 200 P.3d 446 (Kan. 2009).

The Court concluded that K.S.A. 2020 Supp 22-3402(a) directs that unless an exception applies that tolled or extended the speedy trial deadline, a case must be dismissed if the State fails to bring a jailed defendant to trial within 150 days of arraignment. The Court ruled that no exceptions or extensions applied that would excuse the failure to bring Queen to trial within the applicable speedy-trial period.

Accordingly, the Court affirmed the judgment of the COA, reversed Queen’s convictions, vacated his sentences, and remanded the case to the district court with directions to dismiss the charges against him with prejudice. See: State v Queen, 482 P.3d 1117 (Kan. 2021). 

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