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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,518

STATE OF KANSAS,

Appellee,

v.

NICHOLAS L. DUPREE,

Appellant.

SYLLABUS BY THE COURT

1.

The State bears the responsibility to ensure a defendant is afforded a speedy trial 

in compliance with K.S.A. 22-3402; a defendant does not need to take any affirmative 

action to ensure a speedy trial. Arraignment triggers the State's obligation to bring a 

defendant to trial within the statutory limits.

2.

Under the plain language of K.S.A. 22-3402, a continuance resulting from a 

defendant's request stays the running of the statutory speedy trial period. When the 

request is made by defense counsel, the request for continuance is attributable to the

defendant unless the defendant timely voices an objection. Because a defendant's 

disagreement matters in a statutory speedy trial analysis, a defendant must have an 

opportunity to be present to express that disagreement.

3.

Under K.S.A. 2014 Supp. 22-3402(g), the legislature, which created the statutory 

right to speedy trial, has decided to eliminate the remedy for its violation in certain 
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circumstances. When considering if such a change should retrospectively apply, courts 

must consider whether retrospective application of legislation will affect vested or 

substantive rights.

4.

A vested right is one so fixed that it is not dependent on any future act, 

contingency, or decision to make it more secure. Three factors assist in determining if a 

right is vested: (1) the nature of the rights at stake (e.g., procedural, substantive, 

remedial), (2) how the rights were affected (e.g., were the rights partially or completely 

abolished by the legislation; was any substitute remedy provided), and (3) the nature and 

strength of the public interest furthered by the legislation.

5.

K.S.A. 2014 Supp. 22-3402(g) does not create a vested right to dismissal; it is 

procedural and retroactively applies to an appellant seeking reversal based on an alleged 

statutory speedy trial violation.

6.

The Equal Protection Clause of the Fourteenth Amendment to the United States 

Constitution applies to the State's privilege to strike prospective jurors through 

peremptory challenges. An appellate court utilizes a three-step analysis in recognition of 

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when 

considering a challenge that the State exercised its peremptory strikes based on 

purposeful racial discrimination. First, the party challenging the strike must make a prima 

facie showing that the other party exercised a peremptory challenge on the basis of race.

Second, if a prima facie case is established, the burden shifts to the party exercising the 

strike to articulate a race-neutral reason for striking the prospective juror. This reason 
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must be facially valid, but it does not need to be persuasive or plausible. Third, the trial 

court must determine whether the objecting party has carried the burden of proving 

purposeful discrimination.

7.

To preserve an evidentiary issue for appellate review, the complaining party must 

have lodged a timely and specific objection at trial. Even when the district court rules on 

the admissibility of evidence before trial, a party must still make a timely objection at 

trial before the admission of the evidence because the unfolding of a case may require a 

reevaluation of the reasons for the initial ruling.

8.

Photographs of the extent, nature, and number of wounds are usually relevant in 

murder trials.

9.

Cumulative trial errors can require the reversal of a conviction if the totality of the 

circumstances substantially prejudiced the defendant and resulted in an unfair trial. A 

cumulative error issue does not arise, however, if an appellate court concludes none of 

appellant's claims of error have merit. 

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed April 8, 2016.

Affirmed.

Kristen Patty, of Wichita, argued the cause and was on the brief for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,

and Derek Schmidt, attorney general, were with him on the brief for appellee.
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The opinion of the court was delivered by

LUCKERT, J.: On the evening of December 14, 2011, in Wichita, a group of four 

men carried out a burglary of a home, stealing televisions among other things. In the 

process, one of the men murdered Markez Phillips, a young man who was in the 

residence. The four men were eventually identified as Reginald Dupree, Daniel Dupree, 

Malek Brown, and Francis Dupree. 

The instant defendant, Nicholas Dupree, was also quickly linked to the crime. The 

State's theory at trial was that he was a fifth member of the group and, as stated by one 

witness, the "mastermind." A jury accepted the State's theory and convicted Dupree of 

multiple crimes, including felony murder. 

Dupree raises five challenges in this direct appeal, none of which requires the 

reversal of his convictions. His statutory speedy trial claim is foreclosed by our recent 

decision in State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015). Dupree's Batson 

challenge is unpersuasive, and he failed to adequately preserve his appellate challenge to 

the voluntariness of an admission made during a custodial interview. Additionally, we 

conclude the district court did not abuse its discretion in admitting autopsy and crime 

scene photos. Finally, we find no cumulative error in this case. We, therefore, affirm 

Dupree's convictions and sentences. 

FACTUAL AND PROCEDURAL BACKGROUND

Just before Phillips was murdered, he was watching a movie with his girlfriend 

Regina Stuart while Stuart cared for her infant nephew at her mother's house. The couple
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heard a knock, and Phillips got up from the couch to answer the door. Stuart heard him 

ask who it was before two men tried to push the door open. She watched from the living 

room as Phillips began to fight the men. Then she heard what sounded like a firecracker

and saw Phillips fall to the ground. He never got up. 

Two men she had never seen before walked towards her. One pointed a black 

handgun at her and asked for her cell phone, which she gave him. As she pleaded for her 

life, they asked her where the safe was; her family did not have a safe. The men then 

walked Stuart at gunpoint to her mother's room, which the men ravaged, again 

demanding to know the location of a safe. After the men searched the house in vain for 

the safe, all the while threatening to kill Stuart, Stuart told them to take the televisions. 

The men then forced Stuart to lie down on the living room floor next to her 

nephew. One of the men made a phone call for a truck so they could load the televisions. 

Shortly thereafter, another man came into the house and said, "You weren't supposed to 

kill nobody." Stuart recognized the man as Daniel Dupree, whom she had met through 

her sister. Stuart's sister had recently ended a relationship with a man related to Daniel—

Nicholas Dupree. The men removed three televisions from the home while Phillips lay 

bleeding on the floor. 

Later that night, Phillips died in the hospital as a result of the .45 caliber gunshot 

wound to his head. 

Nicholas Dupree's name came up quickly in the investigation. Stuart initially 

suspected Dupree's involvement for two reasons. First, he had been repeatedly harassing 

her sister since their breakup. Apparently, Dupree believed the infant child was his, and 

he had been angry since Stuart's sister told him the child was not. Second, none of the 
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other men Stuart saw that night had ever been to her house. Yet, they seemed to know 

how to best gain access and where to look for things. Dupree, unlike the men in the house 

on that December evening, had been in the house numerous times. 

Stuart also looked at photo arrays, and she quickly identified Daniel. She was also 

able to identify Malek Brown as the man who shot Phillips and Reginald Dupree as the 

man who accompanied Brown into the house. 

In the hours of the night following the crime, Stuart's sister received multiple 

restricted calls to her cell phone and two unrestricted calls that displayed as coming from 

Dupree. She answered one of the restricted calls and recognized Dupree's voice. He told 

her: "Just like that slob nigga just got done, you and your boyfriend about to get done." 

He also texted her twice, saying, "I hope your kids aren't at home," and, "Where are you 

at?" Stuart's family told the case detective about the threats. Dupree would later admit to 

investigators, and also testify at trial, that he made those statements. 

After Dupree's arrest, detectives interviewed him. He denied any involvement in 

the burglary and murder, but he did admit to calling Stuart's sister multiple times that 

night and threatening her.

Detectives also spoke with Marjorielle Evans, Daniel's girlfriend. After some 

hesitation, she told detectives what she knew, and she testified accordingly at trial. Evans 

lived with her kids, her mom, Daniel, Nicholas Dupree, and her brother and sister. Her 

room was downstairs, as was Dupree's. The day before the crime, she overheard Dupree 

talking to Brown about committing a burglary at the Stuart house. When Brown asked 

what was in the house, Dupree listed televisions and an Xbox. Evans provided 
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investigators with the names of the five men involved in the crime, and all were 

eventually taken into custody.

Investigators also discovered that after hearing about Phillips' murder, Evans got 

into a conversation with Stuart on Facebook about the crime. Evans wrote that Dupree 

showed the others where to go and told them to get the televisions. She said Phillips was 

in the wrong place at the wrong time. She said Dupree "was the mastermind of this whole 

thing," and she hoped they would catch Brown, who "had no reason to kill [Phillips]." 

The jury also viewed video captured by a security camera located on a school 

district maintenance shed near the Stuart home. The images showed an SUV pulling up a 

short distance from the Stuart home and three men exiting. Reginald and Brown

proceeded to the house; the other—Francis—walked up the street. The SUV, driven by 

Daniel, left the house, but it soon returned. Police officers located an SUV that belonged 

to Brown's girlfriend and matched the one on the video. Brown's girlfriend testified 

Brown had used her SUV the night of the murder. She also testified Evans told her, the 

day after Phillips' murder, that Brown had shot someone. 

Notably, the jury heard that one shell casing found on the scene of the crime and 

one shell casing found in the backseat of the SUV were both fired from the same Hi-Point 

.45 caliber handgun. A bullet fragment taken from Phillips' head was also fired from that 

same gun. 

Dupree testified at trial in his defense. He told jurors he knew nothing about the 

crime and had nothing to do with it. According to Dupree, he first learned about Phillips' 

murder when his half-sister called and told him. (She denied doing so.) Dupree said he 

felt bad Phillips was murdered because Phillips was his friend—and indeed they had 
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lived together for a few months. While he admitted that he threatened Stuart's sister and 

called Phillips a "slob nigga" (he could not explain why he would refer to his friend in 

such a derogatory way), he said he made the threat (1) because Stuart's sister's boyfriend 

threatened him first and (2) because he was angry that he was not allowed to see the child 

he thought was his son. Nevertheless, for reasons Dupree could not explain, none of the 

calls about which he testified showed up in his phone records. 

After trial, the jury found Dupree guilty on all charged counts: first-degree felony 

murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated 

endangering a child, aggravated assault, and criminal threat. The district court later 

sentenced Dupree to life plus 142 months, and it denied his motion for a departure. 

Dupree timely filed a direct appeal to this court, which has jurisdiction under K.S.A. 

2015 Supp. 22-3601(b)(3). Additional facts will be provided as relevant to the analysis of 

Dupree's appellate arguments. 

ANALYSIS

ISSUE 1: Dupree's convictions are not reversible under the speedy trial statute.

A defendant can assert a speedy trial claim in two ways—one statutory and one 

constitutional. See, e.g., State v. Smallwood, 264 Kan. 69, 74-76, 955 P.2d 1209 (1998) 

(analyzing a statutory speedy trial challenge differently than a constitutional challenge). 

Here, Dupree only presents a statutory challenge under K.S.A. 22-3402 and because he 

did not allege a constitutional speedy trial violation, he has abandoned the constitutional 

argument. See State v. Williams, 298 Kan. 1075, 1083-84, 319 P.3d 528 (2014) (issues 

not argued or briefed are abandoned). 
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Dupree's statutory argument presents a question of law subject to unlimited

review. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009) ("[T]he computation of 

days to be assessed against the so-called speedy trial clock—requires some level of 

statutory interpretation and thus is reviewed de novo."); State v. Adams, 283 Kan. 365, 

368, 153 P.3d 512 (2007) (same).

We begin with the statutory language upon which Dupree bases his claim. Under 

K.S.A. 22-3402(1): 

"If any person charged with a crime and held in jail solely by reason thereof shall not be 

brought to trial within 90 days after such person's arraignment on the charge, such person 

shall be entitled to be discharged from further liability to be tried for the crime charged, 

unless the delay shall happen as a result of the application or fault of the defendant . . . ." 

(Emphasis added.) 

The State bears the responsibility to ensure a defendant is afforded a speedy trial 

in compliance with K.S.A. 22-3402; a defendant does not need to take any affirmative 

action to ensure a speedy trial. Adams, 283 Kan. at 369. Arraignment triggers the State's 

obligation to bring a defendant to trial within the statutory limits. State v. Sievers, 299 

Kan. 305, 307, 323 P.3d 170 (2014). Dupree's arraignment occurred on February 6, 2012. 

So the State had 90 days from that date to bring Dupree to trial. The original date for 

Dupree's trial was April 2, 2012, which amounted to a period of 56 days chargeable to the 

State. From that point, except a period of 14 days, all continuance requests came from the 

defense. 

Under the plain language of this statute, a continuance resulting from a defense 

request stays the statutory speedy trial calculations. Vaughn, 288 Kan. at 151. Dupree 

does not dispute that his defense attorney requested continuances, and, generally, 
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"defense counsel's actions are attributable to the defendant." State v. Bloom, 273 Kan. 

291, 310, 44 P.3d 305 (2002). 

One exception to this general rule is relevant in Dupree's case: We have 

recognized for speedy trial purposes that an attorney cannot continue a case over a 

defendant's objection. See State v. Hines, 269 Kan. 698, 704, 7 P.3d 1237 (2000); see 

also Vaughn, 288 Kan. at 144 (defense counsel's actions attributable to defendant "unless 

the defendant timely voices" disagreement); State v. Arrocha, 30 Kan. App. 2d 120, 126, 

39 P.3d 101, rev. denied 273 Kan. 1037 (2002) (Essentially, Hines created "a unique 

exception [to the rule attributing defense counsel's actions to defendant] for 

circumstances when defense counsel and the defendant openly disagree about setting a 

trial date beyond the statutory time limit."). Dupree claims he was not consulted about the 

continuances and never acquiesced to any continuance. 

In addition, we recently confirmed a defendant must have an opportunity to be 

present to express disagreement with a continuance because a defendant's disagreement 

matters in the statutory speedy trial analysis. See State v. Brownlee, 302 Kan. 491, 508, 

354 P.3d 525 (2015) (agreeing that a defendant should be present at a hearing on a 

defense motion to continue); see also K.S.A. 2014 Supp. 22-3208(7) (stating defendant's 

right to be present at a motion hearing); State v. Taylor, No. 104,455, 2011 WL 3795481, 

at *4 (Kan. App. 2011) (unpublished opinion) (discussing Hines and Arrocha and 

recognizing that "[a] criminal defendant must be afforded a reasonable opportunity to 

object to a continuance affecting his or her speedy trial rights"). Accordingly, Dupree's 

claim, if true, could indicate his right to a speedy trial was violated because he never 

personally waived his statutory right.
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Even if defense counsel did not consult with Dupree, Dupree may not be entitled 

to relief under the majority holding in Brownlee, which interpreted and applied 2012 

amendments to K.S.A 22-3402. As of July 1, 2012: 

"If a defendant, or defendant's attorney in consultation with the defendant, 

requests a delay and such delay is granted, the delay shall be charged to the defendant 

regardless of the reasons for making the request, unless there is prosecutorial misconduct 

related to such delay. If a delay is initially attributed to the defendant, but is subsequently 

charged to the state for any reason, such delay shall not be considered against the state 

under subsection[] (a) . . . and shall not be used as a ground for dismissing a case or for 

reversing a conviction unless not considering such delay would result in a violation of the 

constitutional right to a speedy trial or there is prosecutorial misconduct related to such 

delay." (Emphasis added.) K.S.A. 2014 Supp. 22-3402(g).

In Brownlee, the members of this court disagreed about whether the first sentence 

of subsection (g) sets up a precondition for application of the second sentence. The 

dissenters concluded the first sentence defines and limits the circumstances under which 

the second sentence can operate. 302 Kan. at 526 (Luckert, J., dissenting; Johnson, J., 

joining). Under that view, Dupree would be entitled to relief because he did not request, 

and his attorney did not consult with him before requesting, the delays at issue. 

That view did not prevail, however, and a majority of this court held the two 

sentences in subsection (g) are not "contingent upon each other." Rather, "[t]he second 

sentence is much broader in its application. It involves situations where 'a delay is 

initially attributed to the defendant[ ] but is subsequently charged to the state for any 

reason . . . .' (Emphases added.) K.S.A. 2012 Supp. 22-3402(g)." 302 Kan. at 510. That 

holding, if it retroactively applies to Dupree's case, controls—because Dupree does not 

dispute the State's assertion that the language of the second sentence of subsection (g) 

means he is not entitled to dismissal. Indeed, the sentence fits: The district court initially 
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attributed the delays to Dupree and, even if further investigation into Dupree's claim 

resulted in those delays being charged to the State, the second sentence of K.S.A. 2014 

Supp. 22-3402(g) leaves us with no grounds to reverse Dupree's convictions and dismiss 

the case against him. "Under subsection (g), the legislature, which created the statutory 

right [to speedy trial], has decided to eliminate the remedy for its violation in certain 

circumstances." Brownlee, 302 Kan. at 511.

The question remains, however, whether the newly amended version of K.S.A. 22-

3402 applies to this case. At Dupree's February 6, 2012, arraignment, K.S.A. 22-3402 did 

not contain subsection (g). Subsection (g) first appeared in K.S.A. 2012 Supp. 22-3402, 

which became effective July 1, 2012. We recently held in Brownlee that "K.S.A. 2012 

Supp. 22-3402(g) is a procedural provision, and it can be retroactively applied to [a 

defendant's] case." 302 Kan. at 509-10.

In an attempt to distinguish his case from Brownlee, Dupree argued in a letter of 

additional authority that, unlike Brownlee, the time limit for his statutory speedy trial 

right had expired prior to the effective date of K.S.A. 2014 Supp. 22-3402(g). In 

Brownlee, the 90-day time limit expired on December 11, 2012—after the July 1, 2012, 

date on which subsection (g) became effective. Here, the State's 90 days expired on May 

6, 2012—before the July 1, 2012, effective date. As discussed below, that distinction 

does not matter because Dupree did not have a vested right to dismissal of charges as of 

May 6, 2012. 

Essentially, Dupree contends that the expiration of the statutory speedy trial time 

limit provided him with a "vested" right to dismissal, meaning he was entitled to 

dismissal and subsection (g) and Brownlee's interpretation of it could not retroactively 

apply to his case. Certainly, "[e]ven where the legislative intent is clear, courts must still 
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consider whether retrospective application of legislation will affect vested or substantive 

rights." (Emphasis added.) Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-21, 73 

P.3d 753 (2003).

A vested right is one "so fixed that it is not dependent on any future act, 

contingency or decision to make it more secure." Board of Greenwood County Comm'rs.

v. Nadel, 228 Kan. 469, 474, 618 P.2d 778 (1980). Initially, we do not view Dupree's 

speedy trial claim as fitting the definition of a vested right because a defendant ordinarily 

can only obtain relief under the speedy trial statute by (1) asserting the claim at the 

district court level and winning or (2) losing the claim at the district court level,

appealing, and then persuading a future appellate court to reverse the district court's 

findings of fact. See State v. Crawford, 46 Kan. App. 2d 401, 408-09, 262 P.3d 1070 

(2011) (recognizing that a speedy trial claim is waived if not raised before the district 

court). But see State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007) (court sua sponte

raised speedy trial issue on appeal under the unusual circumstances of the case). In other 

words, dismissal of Dupree's case depended on both his own future acts and other 

contingencies. 

Although Dupree's claim does not seem to fit the general definition of a vested 

right, and even though there are no similar exceptional circumstances in this case, we do 

not reject his argument out of hand in light of Adams. Also, further consideration seems 

warranted since we have recognized that the concept of vested rights is inherently 

difficult to define and apply. See Owen Lumber, 276 Kan. at 221 (citing Resolution Trust 

Corp. v. Fleischer, 257 Kan. 360, 364-65, 892 P.2d 497 [1995], and discussing the 

difficulty in defining a "vested right" and applying the concept). Likewise, in Owen 

Lumber, we set out three factors to be considered in determining whether a statute deals 

with a vested right:
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"'(1) the nature of the rights at stake (e.g., procedural, substantive, remedial), (2) how the 

rights were affected (e.g., were the rights partially or completely abolished by the 

legislation; was any substitute remedy provided), and (3) the nature and strength of the 

public interest furthered by the legislation.'" 276 Kan. at 222. 

Typically, the concept of vested rights has been discussed by this court in the 

context of civil cases, such as Owen Lumber, which involved legislation that sought to 

retroactively eradicate a mechanics lien. 276 Kan. at 227-28. Although less frequently, at 

least some discussion of vested rights has appeared in criminal cases. See, e.g., State v. 

Hunt, 198 Kan. 222, 226-27, 424 P.2d 571 (1967); State v. Montgomery, 34 Kan. App. 2d 

511, 515-16, 120 P.3d 1151 (2005); see also State v. McDaniels, 237 Kan. 767, 770, 703 

P.2d 789 (1985) ("'The right to an appeal is neither a vested nor constitutional right, but is 

strictly statutory in nature. It may be limited by the legislature to any class or classes of 

cases, or in any manner, or it may be withdrawn completely.'"). 

One case from the Court of Appeals, In re Care & Treatment of Hunt, 32 Kan. 

App. 2d 344, 82 P.3d 861 (2004), presented an issue similar to Dupree's, although it arose 

as a civil matter in the context of the Sexually Violent Predator Act (SVPA). In re Hunt

involved individuals committed to the SVPA treatment program who argued they were 

entitled to discharge because their trials did not begin within 60 days of a probable cause 

hearing, as required by statute. Prior caselaw had labeled the 60-day statutory limit as 

jurisdictional; but in response to that caselaw, the legislature amended a statute to make 

clear that the 60-day period was not jurisdictional and that violation of the 60-day period 

should not result in discharge. Like here, the question becomes whether the amendment 

retroactively applied. The In re Hunt court applied the Owen Lumber factors to determine 

whether the legislature sought to retroactively remove an individual's vested right to 

discharge. 32 Kan. App. 2d at 362.
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On the first Owen Lumber factor—the nature of the rights at stake (procedural, 

substantive, or remedial), In re Hunt cited precedent from this court noting that the 60-

day limit was similar to a statute of limitations or criminal speedy trial provision. 32 Kan. 

App. 2d at 363 (citing In re Care & Treatment of Searcy, 274 Kan. 130, 142, 49 P.3d 1 

[2002] ["The mandatory language of K.S.A. 2001 Supp. 59-29a06 is analogous to the 

statutory right to speedy trial in criminal cases"]). Because a statute of limitations can be 

waived, lost, or extended by statute, it does not typically create a vested right. In re Hunt, 

32 Kan. App. 2d at 363-64. But see State v. Noah, 246 Kan. 291, 294-95, 788 P.2d 257 

(1990) (noting procedural nature of statute of limitations but once expired the limitations 

cutoff provides a vested and complete defense; holding legislature cannot amend a 

criminal statute to lengthen the period after it has expired). That is in contrast to a statute 

of repose, which is substantive because it "abolishes the cause of action after the passage 

of time even though the cause of action may not have yet accrued." Harding v. K.C. Wall 

Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992); see also Owen Lumber, 276

Kan. at 223 (noting distinction between statute of limitations and statute of repose); In re 

Hunt, 32 Kan. App. 2d at 364 (same). 

The In re Hunt court found this first factor to be in equipoise. It noted that prior 

cases had treated the 60-day limit as jurisdictional, which was more like a substantive 

statute of repose. The court also recognized, however, that the 60-day limit could be 

waived and extended, much like the more procedural statute of limitations. 32 Kan. App. 

2d at 364. 

Here, in contrast, the speedy trial statute weighs heavily on the procedural side. 

Indeed, rather than establishing a new substantive right, the speedy trial statute is merely

a procedure that works to protect an existing substantive right: "The purpose of K.S.A. 
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22-3402 is to implement the accused's constitutional right to a speedy trial. It is the 

State's obligation to insure that an accused is provided a speedy trial." State v. Green, 252 

Kan. 548, 550, 847 P.2d 1208 (1993). The speedy trial statute is not a "substantive 

criminal law, which either defines a crime or involves the length or type of punishment." 

State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). Rather, the speedy trial 

statute is procedural because it "provides or regulates the steps by which one who 

violates a criminal statute is punished." State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 

138 (1980); see Easterwood v. State, 273 Kan. 361, 372, 44 P.3d 1209 (2002). 

The speedy trial statute puts an obligation on the State to bring a person to trial 

within 90 days; it regulates how the State goes about punishing a person for violating a 

criminal statute. Because the legislature enacted the speedy trial statute as a procedural 

mechanism to protect a substantive constitutional right, the statutory speedy trial time 

limit has long been subject to a number of exceptions: It can be extended as a result of a 

defendant's delay, for a defendant's incompetence, because of the unavailability of

material evidence, because of a crowded court docket, or as a result of actions on appeal. 

See K.S.A. 22-3402(2), (5). Thus, we conclude the first factor weighs in favor of 

retroactive application of a nonvested right. See State v. Williams, 291 Kan. 554, 557, 

244 P.3d 667 (2010) (procedural rule typically operates retroactively unless it 

prejudicially affects the substantive rights of a party), overruled in part on other grounds

State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015).

As to the second Owen Lumber factor—how the right was affected— the In re 

Hunt court noted that a person facing commitment had a complete defense prior to the 

SVPA statute amendments. There, retroactively applying the statute completely abolished 

the defense without providing any substitute remedy. 32 Kan. App. 2d at 364; see also 

Noah, 246 Kan. at 294-95 (criminal statute of limitations, once expired, cannot be 
17

retroactively lengthened because it abolishes a complete defense). Here, for two reasons, 

the 2012 amendments to the speedy trial statute do not affect the right as severely as the 

In re Hunt statute.

First, K.S.A. 2014 Supp. 22-3402(g) only removes the remedy for a statutory 

speedy trial violation and does so in only some circumstances, stating: "If a delay is 

initially attributed to the defendant, but is subsequently charged to the state for any 

reason, such delay . . . shall not be used as a ground for dismissing a case or for reversing 

a conviction." Granted, removal of the remedy in those limited circumstances undercuts

the statutory right, but "the general rule is that there are no vested rights in a particular 

remedy or method of procedure." Owen Lumber, 276 Kan. at 222; see also McDaniels, 

237 Kan. at 770 (right to appeal is neither vested nor constitutional). Second, the statute 

does not affect the statutory remedy in circumstances not covered by subsection (g) and 

preserves a remedy even under subsection (g) for a constitutional speedy trial violation, 

which we have said is the ultimate objective of the statute, or if there has been

prosecutorial misconduct. K.S.A. 2014 Supp. 22-3402(g) (no dismissal or reversal of 

conviction on appeal "unless not considering such delay would result in a violation of the 

constitutional right to a speedy trial or there is prosecutorial misconduct related to such 

delay"). Unlike in In re Hunt, the statutory speedy trial defense is not completely 

abolished. 

The third Owen Lumber factor—the nature and strength of the public interest 

furthered by the legislation—weighed heavily in favor of retroactivity in In re Hunt. "The 

public has an enormous interest in seeing that persons who qualify as sexually violent 

predators are removed from society and treated in appropriate facilities." Ultimately, the 

In re Hunt court found that the factors (particularly the public's interest) tipped the scale 
18

towards retroactive application, meaning the SVPA committees did not have a vested 

right to discharge. 32 Kan. App. 2d at 364-65.

Here, too, we find the third factor weighs heavily in favor of finding a nonvested 

right. The legislature restricted the defendant's remedy only under limited circumstances: 

when an initial decision attributing a delay to the defendant is reversed and charged to the 

State. Whether this reversal occurs at the district court or appellate level, it likely happens 

due to some factual or legal error. Notwithstanding the speedy trial statute as it was 

worded before the amendments at issue, in other contexts, only rarely does such a judicial 

error result in the outright dismissal of a case. 

Rather, the Kansas Legislature has generally directed that "[a]t every stage of the 

proceeding, the court must disregard all errors and defects that do not affect any party's 

substantial rights." K.S.A. 2014 Supp. 60-261; see K.S.A. 60-2105 (criminal conviction 

typically will be reversed only when an error "ha[s] prejudicially affected the substantial 

rights of the party complaining"); State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 

(2011), cert. denied 132 S. Ct. 1594 (2012) (test under 60-261 is whether "there is a 

reasonable probability that the error did or will affect the outcome of the trial in light of 

the entire record"). Thus, the previous language of the speedy trial statute created an 

extraordinary remedy for judicial error somewhat at odds with general legislative policy.

Subsection (g) merely limits the reach of that extraordinary remedy. Indeed, subsection 

(g) specifically preserves the remedy for a constitutional speedy trial violation, i.e., when 

substantial rights are prejudiced. 

Properly attributing the delay leads to a correct application of the speedy trial 

statute and does not affect any party's substantial rights. See 2014 Supp. K.S.A. 60-261. 

The current statute still serves its fundamental purpose of expeditiously resolving 
19

criminal matters because the State still has an obligation to bring a defendant to trial 

within the time frames of statutory speedy trial. To be sure, if the district court correctly 

attributes delays and the State fails to bring a defendant to trial within the statutory limits, 

the district court must dismiss the case. The amendment furthers the social interest of 

seeing that those accused of crimes are both prosecuted and given a fair trial by limiting 

the extraordinary remedy of dismissal and making it inapplicable to judicial errors that 

would otherwise not affect substantial rights. See, e.g., K.S.A. 2014 Supp. 60-261. In 

other words, the third factor suggests Dupree did not have a vested right. 

Thus, the speedy trial statute does not create a vested right; K.S.A. 2014 Supp. 22-

3402(g) is procedural and retroactively applies to Dupree's case. Because we cannot grant 

Dupree any relief for his alleged statutory speedy trial claim, we do not decide whether 

the district court was wrong to attribute the delays against Dupree given that Dupree does 

not suggest his constitutional rights were violated or that the delays resulted from 

prosecutorial misconduct. See K.S.A. 2014 Supp. 22-3402(g); Brownlee, 302 Kan. at 

511. 

ISSUE 2: The district court properly overruled Dupree's Batson challenge.

The Equal Protection Clause of the Fourteenth Amendment to the United States 

Constitution "applies to the State's privilege to strike prospective jurors through 

peremptory challenges." State v. Kettler, 299 Kan. 448, 461, 325 P.3d 1075 (2014). We

use a three-step analysis in recognition of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 

1712, 90 L. Ed. 2d 69 (1986), when considering a challenge that the State exercised its 

peremptory strikes based on purposeful racial discrimination. See Kettler, 299 Kan. at 

461; State v. Hood, 242 Kan. 115, 122-23, 744 P.2d 816 (1987). A distinct standard of 

review governs each step of the analysis: 
20

"First, the party challenging the strike must make a prima facie showing that the 

other party exercised a peremptory challenge on the basis of race. Appellate courts utilize 

plenary or unlimited review over this step. [Citation omitted.]

"Second, if a prima facie case is established, the burden shifts to the party 

exercising the strike to articulate a race-neutral reason for striking the prospective juror. 

This reason must be facially valid, but it does not need to be persuasive or plausible. The 

reason offered will be deemed race-neutral unless a discriminatory intent is inherent in 

the explanation. The opponent of the strike continues to bear the burden of persuasion. 

[Citation omitted.]

"Third, the trial court must determine whether the objecting party has carried the 

burden of proving purposeful discrimination. This step hinges on credibility 

determinations. '[U]sually there is limited evidence on the issue, and the best evidence is 

often the demeanor of the party exercising the challenge. As such, it falls within the trial 

court's province to decide, and that decision is reviewed under an abuse of discretion 

standard.' [Citations omitted.]" Kettler, 299 Kan. at 461-62. 

A district court abuses its discretion when it makes a decision that is based on an error of 

law or fact; or when it makes a decision that is otherwise arbitrary, fanciful, or 

unreasonable. State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).

The parties here do not contest that there was a prima facie showing that the State 

exercised a preemptory challenge on the basis of race. Rather, they focus on whether the 

district court (1) erred in finding that the State had articulated a race-neutral reason for 

striking two African Americans, D.W. and K.B., and (2) abused its discretion in 

concluding that Dupree had not established purposeful discrimination. Neither argument 

is persuasive.
21

Turning first to D.W., the State claimed it struck her because her answers about 

felony murder were troubling. During voir dire, the prosecutor spoke about the concept of 

felony murder, explaining a person can be guilty of murder even without pulling the 

trigger. D.W. said she would have a problem finding someone guilty of murder if he or 

she were not the person directly responsible for the murder. But she said she understood 

that she would have to follow the law, and she conceded she would not break her oath as 

a juror. However, she also told the prosecutor to "[t]ake somebody else" because she 

could not "morally and conscientiously" convict someone for felony murder. The next 

day, the defense attempted to rehabilitate D.W. Again, D.W. expressed her disapproval of 

the concept of felony murder. But she did reiterate that she would follow the law, even if 

she did not want to, and would not break her oath. 

The State carries a relatively low burden to provide a race-neutral reason for a 

strike—the justification must be facially valid, but it need not necessarily be plausible or 

persuasive. Kettler, 299 Kan. at 462. Here, our review of the record reveals that the 

State's reason was more than facially valid; it was plausible and persuasive. D.W. told the 

prosecutor she could not morally convict someone of felony murder. She later told the 

defense, reluctantly and somewhat to the contrary, that she would follow the law 

regarding felony murder even if she did not agree with it. Regardless of which of these 

competing principles D.W. would ultimately follow, we agree that D.W.'s hesitation 

provided the State with a race-neutral reason to strike her from the jury panel. Moreover, 

the State also struck two other jurors, who were not African American, for the same 

reason. See Angelo, 287 Kan. at 274 (a court can consider whether State struck white 

potential jurors for the same reason as an African American). Thus, we conclude the 

district court did not abuse its discretion in finding no purposeful discrimination as to 

D.W.
22

Turning to K.B., the prosecutor remembered him from a prior case—K.B.'s 

girlfriend had been a witness. Additionally, K.B. revealed he was a self-employed coowner of a barbershop. When the defense asked if missing work for a week to serve on a 

jury would hurt him financially, K.B. replied, "It will be a challenge, but I'll get through 

it." Later, the State used a peremptory strike on K.B., resulting in Dupree's Batson 

challenge. 

The State responded with several race-neutral reasons. First, it noted that after the 

conclusion of voir dire, K.B. had contacted the court assistant and disclosed that he 

thought he graduated with Dupree or at least had a class with him—something K.B. did 

not mention during voir dire. Second, the prosecutor remembered K.B. from the prior 

case because K.B. and his girlfriend were evasive as witnesses. Third, the prosecutor 

noted that as a self-employed person it would be hard, financially, for K.B. to serve on a 

jury trial that was likely to span a week. 

Concerned about K.B.'s post-voir dire disclosure that he might know Dupree, the 

court called K.B. into chambers. K.B. told the court that it had just occurred to him the 

previous night that he might know Dupree. He claimed his knowledge of Dupree would 

not make him biased. Before leaving chambers, K.B. added that he also knew two 

Wichita police officers. K.B. did not explain why he waited to disclose this information. 

Indeed, the panel of potential jurors during voir dire answered questions about both their 

knowledge of Dupree and their relationships with police officers. 

In response to the State's reasons for its strike, Dupree said he did not remember 

K.B. from school, and the defense argued K.B. had been forthcoming. Nonetheless, the 

court found K.B. to be less than forthcoming in his answers to voir dire questions. The 
23

court also found the State's reasons were race-neutral and that Dupree had not shown 

purposeful discrimination. 

This left two African Americans on the panel—the defense struck one, and the 

other was selected as the alternate juror. Although not determinative, the court can 

consider that other members of the same race as the defendant were not struck. Angelo, 

287 Kan. at 274.

On appeal, Dupree primarily argues that the district court abused its discretion as 

to K.B. by providing its own reason to strike K.B. rather than by accepting the State's 

proffered race-neutral reasons. We are not persuaded by Dupree's argument because it is 

premised on an unfair reading of the record. 

A district court resolves a Batson challenge by ultimately determining if the 

attorney exercising the peremptory strike did so for legitimate or discriminatory ends. 

Likewise, the decision rests heavily on an assessment of the credibility and demeanor of 

the challenging attorney. Appellate courts give significant deference to those sorts of 

credibility findings. Angelo, 287 Kan. at 272; see State v. Brooks, 297 Kan. 945, 951, 305 

P.3d 634 (2013) ("appellate court[s] will not determine the credibility of witnesses"). 

Here, one of the prosecutor's race-neutral reasons was that he knew K.B. and believed 

him to be evasive and less than forthcoming. Notably, this court has affirmed peremptory 

strikes based on lesser reasons like body language and a prosecutor's intuition. Angelo,

287 Kan. at 274-75. 

In this case, it so happened that the district court did not have to rely solely on the 

prosecutor's subjective beliefs about K.B.'s nature. The district court was able to judge 

whether K.B. had been forthcoming during voir dire when he came forward with directly 
24

relevant information after voir dire had ended. Contrary to Dupree's claim, the district 

court did not generate its own reason when it expressed its concern over K.B.'s 

inexplicably delayed disclosure of information. More accurately, the court provided a bit 

of explanation why, under the circumstances, it found one of the State's race-neutral 

reasons appropriate. 

Furthermore, the case Dupree cites, Paulino v. Castro, 371 F.3d 1083 (9th Cir. 

2004), to support his argument is distinguishable. There, the defense raised a Batson 

challenge but, before the defense could finish explaining the reasons for its challenge, the 

district court interrupted with speculation about why the prosecutor exercised peremptory 

strikes. The court never gave the prosecutor a chance to explain its strikes, which clearly 

contravened the steps of the Batson analysis. See also State v. Knighten, 51 Kan. App. 2d 

417, 424, 427, 347 P.3d 1200 (2015) (district court told parties it was "'not asking for a 

race, gender or any kind of neutral explanation at this point,'" resolving the matter with 

"its own notes and experiences . . . without first requiring the State to produce raceneutral reasons"). Indeed, the crux of a Batson analysis is whether the State's actual 

reason for a strike is discriminatory. So it is error to fail to provide the State with an 

opportunity to explain its reason even if the court can come up with a good reason why 

the State might have justified the strike. Paulino, 371 F.3d at 1089-90. This simply did 

not happen here. 

Here, the record is clear that the district court found a prima facie case, asked for 

and considered the State's reasons for the strikes, and in light of those reasons ultimately 

concluded that Dupree failed to prove purposeful discrimination. The district court did 

not abuse its discretion in overruling Dupree's Batson challenges. 
25

ISSUE 3: Dupree failed to preserve an issue regarding the voluntariness of his statements 

during a postarrest custodial interview.

Next, Dupree argues the district court should have suppressed a statement he made 

during a custodial interview after Dupree was first arrested. He specifically focuses on his 

admission to making the following statement to Stuart's sister over the phone: "Just like 

that slob nigga about got done, you and your boyfriend going to get done."

After a pretrial hearing, the district court concluded this admission was admissible. 

On appeal, Dupree argues his admission was involuntary, and thus inadmissible, for two 

reasons. First, he claims the interviewing officer deceived him into admitting that he 

made the above statement to Stuart's sister. Second, he argues his admission was 

involuntary under Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 

(2004), and that the State failed to prove otherwise. We conclude Dupree failed to 

preserve these arguments for our review because he did not lodge a timely objection to 

the evidence regarding his admission before the district court. 

Generally, to preserve an evidentiary issue for appellate review, the complaining 

party must have lodged a timely and specific objection at trial. K.S.A. 60-404; State v. 

Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Even when the district court rules on the 

admissibility of evidence pretrial, a party must still make an objection at trial before the 

admission of the evidence because the unfolding of a case may require a reevaluation of 

the reasons for the initial ruling. State v. Richard, 300 Kan. 715, 720-21, 333 P.3d 179 

(2014). 

Here, Dupree did not object at any point during the testimony of the interviewing 

detective who told the jury that Dupree admitted to having made the phone call 

(1) because he was angry and (2) with the understanding that his statement could be taken 
26

as a threat. Instead, in a recess following the testimony, Dupree's counsel asserted he had 

"two continuing ongoing objections to these statements . . . based on the previous 

motions we argued." 

Now, on appeal, Dupree claims the district court granted him a continuing 

objection during the pretrial ruling on admissibility. However, the record reflects that 

Dupree's counsel never requested a continuing objection during the pretrial hearing. The 

colloquy following the ruling on voluntariness proceeded as follows:

"[DEFENSE COUNSEL]: And I presume that the Court's going to give me leave to 

object at the time when these statements are coming out and state something to the matter 

of for the reasons previously argued or something like that?

"THE COURT: I will allow you to make your record to—to the extent that we don't go 

back and start arguing what we've already argued here this morning. 

"[DEFENSE COUNSEL]: Sure. Understood." (Emphasis added.)

Despite defense counsel's request to make a contemporaneous record during trial 

when the statements were admitted into evidence, counsel did not contemporaneously 

object during the lengthy direct examination in which the statements came into evidence. 

He objected only during a recess after the jury already heard the evidence. 

The State is correct that Dupree never lodged a timely objection, which leaves his 

argument about voluntariness unpreserved for appeal. See Richard, 300 Kan. at 720-21. 
27

ISSUE 4: The district court did not abuse its discretion by admitting photographs.

Dupree next argues the trial court erred in admitting certain photographic exhibits

on the basis that the photographs were gruesome, duplicative, and meant to ignite the 

jury's sympathies. Specifically, Dupree challenges the admission of three groups of 

photos on appeal: emergency room photos, autopsy photos, and crime scene photos. We 

find no error in the admission of the photographic evidence. 

At the outset, Dupree concedes that photographs of the extent, nature, and number 

of wounds are usually relevant in murder trials. State v. Hickles, 261 Kan. 74, 85, 929 

P.2d 141 (1996) (citing State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 [1978]).

Nevertheless, he argues the district court abused its discretion in admitting the photos in 

this case. We find no merit in his various arguments. 

Dupree first challenges the relevancy of photographs of Phillips' emergency room 

treatment. The test for relevancy is whether the evidence has "any tendency in reason to 

prove any material fact." K.S.A. 60-401(b); State v. Bowen, 299 Kan. 339, 348, 323 P.3d 

853 (2014). This definition requires the evidence to be material and probative. Evidence 

is material when the fact it supports is in dispute or in issue in the case. Review for 

materiality is de novo. 299 Kan. at 348. Evidence is probative if it has any tendency to 

prove any material fact. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013). 

Appellate courts review the district court's assessment of the evidence's probative value 

under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 

140 (2014).

As to materiality, photographs showing the jury the manner of death are material

in a murder trial. See State v. Backus, 295 Kan. 1003, 1013, 287 P.3d 894 (2012). Here, 

the photographs are probative of this material fact in that they show the manner of 
28

Phillips' death—a gunshot to his head, and the unfortunately unsuccessful attempt to save 

his life. Moreover, it was Dupree who, through cross-examination, suggested that not 

enough was done to save Phillips' life. When a defendant discusses an area of evidence 

that would otherwise be forbidden the State can respond by presenting evidence in that 

formerly forbidden area. See State v. Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013). 

So even if the emergency room photographs were for some reason initially irrelevant, the 

State here properly presented the photographs to the jury as a rebuttal to Dupree's 

suggestion that no one tried to save Phillips. 

Based on our de novo review of the record, we hold that the emergency room 

photographs were material and that the district court did not abuse its discretion in 

weighing the probative nature of the photographs. See Bowen, 299 Kan. at 348. 

Dupree next challenges the autopsy photographs. At its core, Dupree's argument 

attacks the relevance and the cumulative nature of the photographs. 

As to relevance, "photographs which serve to illustrate the nature and extent of the 

wounds inflicted are admissible when they corroborate the testimony of witnesses or are 

relevant to the testimony of a pathologist as to the cause of death." State v. Verge, 272 

Kan. 501, 515, 34 P.3d 449 (2001). In Dupree's trial, the coroner testified about the 

gunshot wound to Phillips' head and concluded that it was the cause of his death. The 

district court correctly determined the photographs were relevant.

In arguing about the cumulative nature of the autopsy photographs, Dupree 

suggests one photograph rather than four was sufficient, noting that the coroner did not 

even need to reference some of the photographs. As we explained in Hickles, 261 Kan. at 

88: "Cumulative evidence is evidence of the same kind to the same point, and whether it 
29

is cumulative is to be determined from its kind and character, rather than its effect." A 

district court may in the exercise of discretion refuse to admit cumulative evidence. 261 

Kan. at 88; see also State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012) (on 

appeal, abuse of discretion standard applies to cumulative error complaint). 

Here, each of the photographs corroborated the coroner's testimony by showing 

Phillips' body at different angles and distances. As we said in State v. Rodriguez, 295 

Kan. 1146, 1158, 289 P.3d 85 (2012), the photographs depicted the "injuries in a way that 

[the coroner's] mere words could not. In this way, they had additional relevance. In 

addition, they were not repetitious of each other, because each was taken from a different 

angle."

Finally, Dupree challenges the crime scene photos and again argues the photos 

were cumulative. However, the detective testified that she tried to get a panoramic view 

of the kitchen where Phillips was shot "the hard way" with single camera shots. Further, 

the photos served to corroborate Stuart's and the detectives' testimony about the 

circumstances of Phillips' murder. Verge, 272 Kan. at 515. 

Rarely has this court found an abuse of discretion in the admission of 

photographic evidence in a murder trial; here too, we conclude the district court did not 

abuse its discretion in admitting the photos. 

ISSUE 5: The cumulative effect of errors in Dupree's case does not require reversal of his 

convictions.

Dupree argues this court must reverse his convictions because multiple trial errors, 

considered together, resulted in an unfair trial. Cumulative trial errors can require the 

reversal of a conviction if the totality of the circumstances substantially prejudiced the 
30

defendant and resulted in an unfair trial. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 

(2012), overruled in part on other grounds State v. King, 297 Kan. 955, 305 P.3d 641 

(2013). If there is no error or only a single error, however, there is no error to accumulate

and no basis to reverse a conviction. See State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 

640 (2012). We do not find any errors in Dupree's case, however. At most, we assume a 

possible violation of the speedy trial statute, although we conclude Dupree does not have 

a right to a remedy. Because there is only one assumed error, there are no errors to 

accumulate. 

Affirmed.