No. 112,019

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

JACK R. LAPOINTE,

Appellee.

SYLLABUS BY THE COURT

1.

The State's right to appeal on a question reserved in a criminal case is only 

available after final judgment.

2.

Interlocutory appeals, in which the State can appeal district court rulings on 

matters that are not final, are limited to the specific situations listed in K.S.A. 2014 Supp. 

22-3603.

3.

When the district court grants a motion for DNA testing under K.S.A. 2014 Supp. 

21-2512, the statute provides for additional proceedings in the district court if the DNA 

testing is favorable to the defendant. One possible outcome is an order for a new trial, 

which is neither a final order nor an appealable nonfinal order. Because a district court's 

grant of a motion for DNA testing leaves open the possibility for further proceedings, the 

State may not appeal that order.
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Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed July 17, 2015. 

Dismissed.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellant.

Richard Ney, of Ney & Adams, of Wichita, for appellee.

Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.

LEBEN, J.: In 2004, Jack R. LaPointe was convicted of aggravated robbery and 

aggravated assault based on a robbery of a Payless shoe store. Because he had prior 

convictions, he received a lengthy sentence—245 months. 

In 2014, LaPointe filed a motion requesting postconviction DNA testing of 

evidence found near the scene of the crime. He cited K.S.A. 2014 Supp. 21-2512(a), (c), 

which provides for DNA testing when a defendant has been convicted of first-degree 

murder or rape and the court determines that testing may produce evidence showing that 

the defendant was wrongfully convicted. The district court granted LaPointe's motion

under State v. Cheeks, 298 Kan. 1, 6-14, 310 P.3d 346 (2013), a case in which our 

Supreme Court held that the Equal Protection Clause of the United States Constitution 

requires that DNA testing be allowed for defendants who are similarly situated to those 

convicted of murder or rape. The State has appealed to this court upon a question 

reserved, arguing that the district court erred in ordering the testing. 

But we lack jurisdiction to consider the State's appeal. The State's right to appeal 

on a question reserved applies only to a final judgment. See State v. Grimes, 229 Kan. 

143, 146-47, 622 P.2d 143 (1981); State v. Puckett, 227 Kan. 911, 912, 610 P.2d 637 

(1980). At the time the State filed its appeal, the DNA-testing aspects of this case were 

still pending, and the district court had not entered final judgment. The court had ordered 
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DNA testing, and the statute under which that testing had been ordered provided that the 

court consider whether a new trial should be ordered if the testing proved favorable to the 

defendant. See K.S.A. 2014 Supp. 21-2512(f)(2). We therefore dismiss the State's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2004, a jury found LaPointe guilty of aggravated robbery and aggravated 

assault based on the robbery of a Payless shoe store in October 2000. State v. LaPointe

(LaPointe I), No. 93,709, 2006 WL 2936496, at *1 (Kan. App. 2006) (unpublished 

opinion), rev. denied 283 Kan. 932 (2007). On October 30, 2000, the police were

informed that a white male in a plaid shirt, jacket, and bandana had robbed the Payless 

store. The police used a dog to search for evidence of the crime, and the dog led them to a 

plaid shirt, hat, and blue bandana at various locations around an apartment complex 

behind the strip mall where the Payless store was located. The police also found a pair of 

cloth gloves at the apartment complex. 

At LaPointe's trial, Brandy Loveall testified that she had seen a man walking 

quickly down the sidewalk at the strip mall carrying a gun and wearing a bandana and

that she had later identified LaPointe as that man in a police lineup. Michael Norton told 

the jury that he and LaPointe had intended to commit a robbery and that he had driven the 

getaway car while LaPointe robbed the Payless store. 

A chemist who had conducted DNA testing on evidence in the case also testified. 

She said she had found hairs on the bandana, shirt, cap, and gloves but that she had not 

recovered enough DNA to develop a profile. Robert Booth, a criminalist at the Kansas 

City, Missouri, Police Department Crime Laboratory, testified that he had done a hair 

analysis comparing the hairs found on the bandana, shirt, cap, and gloves to LaPointe's 

hair and found that they did not match. He said that he could not say with certainty that 

they were not LaPointe's but that "the probability [was that it was] not his hair." Booth 
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explained that his comparison testing did not definitively establish that the head hairs did 

not come from LaPointe because he had only a sample of LaPointe's hair and because 

LaPointe could have changed something about his hair since the hairs were deposited. 

Nevertheless, Booth testified that those two scenarios were rare and that the "the most 

likely outcome" was that the hairs were not LaPointe's. During closing argument, defense 

counsel emphasized that no physical evidence linked LaPointe to the crime.

The jury nevertheless convicted LaPointe, and he was sentenced to 245 months in 

prison, which would run consecutively to sentences in three other cases. LaPointe

appealed his convictions to this court, which affirmed them in 2006. LaPointe I, 2006 

WL 2936496, at *3.

Since then, LaPointe has sought postconviction relief on multiple occasions. We 

will skip the earlier filings and discuss only the motion that led to this appeal, which was 

filed in February 2014.

This motion sought postconviction DNA testing in LaPointe's criminal case. 

Specifically, he asked for mitochondrial DNA testing pursuant to K.S.A. 2014 Supp. 21-

2512. That statute provides for postconviction DNA testing if it might produce relevant 

evidence showing that the petitioner was wrongfully convicted or sentenced:

"[A] person in state custody, at any time after conviction for murder in the first 

degree . . . or for rape . . . may petition the court that entered the judgment for forensic 

DNA testing . . . of any biological material that:

(1) Is related to the investigation or prosecution that resulted in the conviction;

(2) is in the actual or constructive possession of the state; and
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(3) was not previously subjected to DNA testing, or can be subjected to retesting 

with new DNA techniques that provide a reasonable likelihood of more accurate and 

probative results.

. . . . 

"(c) The court shall order DNA testing . . . upon a determination that testing may 

produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that 

the petitioner was wrongfully convicted or sentenced." K.S.A. 2014 Supp. 21-2512(a), 

(c). 

The same statute provides for the possibility of further proceedings after the DNA 

testing is completed. Indeed, if the results of the testing are favorable to the defendant 

and there is a reasonable probability that the results would change the outcome of the 

case, the court must provide the defendant with relief, such as a new trial:

"(2) If the results of DNA testing conducted under this section are favorable to 

the petitioner and are of such materiality that a reasonable probability exists that the new 

evidence would result in a different outcome at a trial or sentencing, the court shall:

(A) Order a hearing, notwithstanding any provision of law that would bar such a 

hearing; and

(B) enter any order that serves the interests of justice, including, but not limited 

to, an order:

(i) Vacating and setting aside the judgment;

(ii) discharging the petitioner if the petitioner is in custody;

(iii) resentencing the petitioner; or

(iv) granting a new trial." K.S.A. 2014 Supp. 21-2512(f)(2).
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In May 2014, the district court granted LaPointe's motion for DNA testing. In 

support of its order, the district court cited State v. Cheeks, 298 Kan. 1, 310 P.3d 346 

(2013), a case in which the Kansas Supreme Court determined that the Equal Protection 

Clause of the United States Constitution dictates that DNA testing should be allowed for 

defendants who are "similarly situated" to those convicted of murder or rape (the 

convictions for which the statute authorizes postconviction DNA testing). The district

court found that LaPointe was similarly situated to people convicted of first-degree 

murder or rape because he was sentenced to more than 20 years in prison, which was

comparable to or greater than potential sentences for those crimes. Before the DNA 

testing was done, the State then filed this appeal of the district court's decision. 

The DNA testing was completed while this appeal has been pending. The results 

confirmed that LaPointe was not the source of one hair. The results from a second hair 

were inconclusive, but the report stated that it was more likely that LaPointe was not the 

source of the DNA than that the result was inconclusive. 

In February 2015, LaPointe filed a motion for hearing with the district court based 

on the test results. LaPointe asked that he either be discharged from custody or granted a 

new trial. At the time LaPointe filed his appellate brief in this case, his motion for a 

hearing was pending before the district court. Since he filed that brief, the district court

has determined that the postconviction DNA evidence was not so important to the case 

that there was a reasonable probability that the new evidence would result in a different 

outcome at a trial or sentencing. On that basis, the district court refused to grant a new 

trial or other relief to LaPointe. 

LaPointe filed a notice of appeal of the district court's decision to deny him relief

based on the test results. That appeal has been separately docketed in our court as case 

No. 113,580 and is not pending before this panel.
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ANALYSIS

The State has appealed the district court's order for DNA testing under K.S.A. 

2014 Supp. 21-2512. LaPointe argues that we lack jurisdiction to reach the merits of the 

State's arguments because the State does not have authority to appeal the district court's 

decision to order DNA testing. The State counters that it has authority to file this appeal

as a question reserved—a type of appeal that allows the State to obtain review of a trial 

court's adverse ruling on a legal issue if the issue is of statewide interest, is important to 

the correct and uniform administration of criminal justice, and otherwise would not be 

subject to appellate review. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 

(2005); State v. Ruff, 252 Kan. 625, 629, 847 P.2d 1258 (1993); State v. Pearce, 51 Kan. 

App. 2d 116, 121-22, 342 P.3d 963 (2015). 

We have jurisdiction to consider appeals only in the manner prescribed by statute. 

State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). K.S.A. 2014 Supp. 22-3602(b) 

lists the instances in which the State can appeal as a matter of right, including upon a 

question reserved: 

"Appeals to the court of appeals may be taken by the prosecution from cases 

before a district judge . . . as a matter of right in the following cases, and no others:

"(1) From an order dismissing a complaint, information or indictment;

"(2) from an order arresting judgment;

"(3) upon a question reserved by the prosecution; or

"(4) upon an order granting a new trial in any case involving a class A or B 

felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid 

crime." (Emphasis added.)
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So the statute, K.S.A. 2014 Supp. 22-3602(b)(3), does provide jurisdiction to 

consider a State appeal on a question reserved. Questions reserved are not used to 

determine whether the trial court committed error because "an appellate court's answer to 

a State's question reserved has no effect on the defendant in the underlying case." State v.

Berreth, 294 Kan. 98, 123, 273 P.3d 752 (2012). Rather, we decide a question reserved 

because the matter is of statewide importance. Pearce, 51 Kan. App. 2d at 122.

But our Supreme Court has said that a question-reserved appeal is only available 

after a final judgment. See State v. Grimes, 229 Kan. 143, Syl. ¶ 2, 622 P.2d 143 (1981);

State v. Puckett, 227 Kan. 911, Syl. ¶ 1, 610 P.2d 637 (1980). A question-reserved appeal 

presupposes that the case has concluded but that an answer to a legal question is 

necessary to determine future cases. Berreth, 294 Kan. at 124.

The Puckett and Grimes cases both show that only a final judgment may be 

appealed by the State on a question reserved. In Puckett, the district court allowed the 

defendant to withdraw his pleas and then returned the case to the jury-trial calendar. 227 

Kan. at 911. The State appealed the order allowing the defendant to withdraw his plea, 

and the Kansas Supreme Court held that it lacked jurisdiction to consider the merits of 

the case because no final judgment had been entered. 227 Kan. at 912-13. The court 

stated that appeals as a matter of right by the State inherently require a final judgment, so 

the State's appeal was interlocutory and could not be decided because it did not fit the 

categories listed in another statute that provided for interlocutory appeals by the State. 

227 Kan. at 912-13.

In Grimes, a jury had found the defendant guilty of aggravated battery, but the 

district court granted a new trial based on an erroneous jury instruction. 229 Kan. at 144. 

The State appealed the order granting a new trial, and the Kansas Supreme Court again 

dismissed the appeal, finding that the appeal was interlocutory and that K.S.A. 1980 
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Supp. 22-3602(b)(3)—which is substantially the same as the current statute providing 

jurisdiction for questions reserved—did not authorize interlocutory appeals by the State. 

229 Kan. at 146-47. Thus, under Puckett and Grimes, for the State to appeal upon a

question reserved as a matter of right, it must be appealing a final judgment. See Grimes, 

229 Kan. at 146-48; Puckett, 227 Kan. at 912.

Here the State argues that there has been a final judgment in LaPointe's case. 

Criminal judgments become final after both a conviction and a sentence, and LaPointe

was convicted and sentenced approximately a decade ago. See State v. Hall, 298 Kan. 

978, 988, 319 P.3d 506 (2014). The State notes that in Puckett and Grimes, the 

defendants had not been convicted and sentenced.

But we are not dealing with the original criminal judgment here; we are dealing 

with an order for DNA testing. When the court ordered DNA testing, there remained an 

ongoing proceeding in which K.S.A. 2014 Supp. 21-2512(f)(2), part of the statute 

authorizing DNA testing, left open the possibility of a further order for new trial. 

We know now that the district court did not order a new trial (even though the 

DNA testing was favorable to LaPointe). But at the time the State filed its appeal, the 

district court retained authority to consider a request for new trial if the testing was 

favorable to LaPointe. In Grimes, the State could not appeal an order for new trial. Here, 

we only had the entry of an order that could have led to an order for a new trial.

Appellate courts do not provide piecemeal reviews of every routine evidentiary 

ruling that is adverse to the State, and the district court here had not finished its 

proceedings when the State appealed. The State's appeal here is akin to an interlocutory 

or interim appeal of an order granting a pretrial motion, such as one granting a 

psychological evaluation of an alleged victim of a child sex crime, which the State could 

not appeal before trial unless it would somehow serve to suppress evidence at trial. See 
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Sales, 290 Kan. at 136; State v. Dearman, No. 110,798, 2014 WL 3397185, at *3 (Kan. 

App. 2014) (unpublished opinion) (citing State v. Berriozabal, 291 Kan. 568, Syl. ¶¶ 4-5, 

243 P.3d 352 [2010]; State v. Price, 275 Kan. 78, 80, 61 P.3d 676 [2003]).

We do have limited jurisdiction to consider some interlocutory appeals by the 

State, but only the appeal of certain orders—orders quashing a warrant or a search 

warrant or orders suppressing evidence, a confession, or an admission. K.S.A. 2014 

Supp. 22-3603. As was the case in Grimes, in this case, the State is not challenging one 

of the orders listed in K.S.A. 2014 Supp. 22-3603. Accordingly, neither the statute that 

provides for State appeals as a matter of right, K.S.A. 2014 Supp. 22-3602(b), nor the 

statute that provides for interlocutory appeals by the State, K.S.A. 2014 Supp. 22-3603, 

provides jurisdiction for this appeal.

The State makes one final argument in favor of jurisdiction. It says that "[i]f 

LaPointe's petition filed within the criminal case number is analogous to a civil case, then 

appellate jurisdiction still exists." The State notes that our appellate courts have 

considered requests for DNA testing in civil appeals and that K.S.A. 2014 Supp. 21-2512 

says a person in custody may "petition" for DNA testing. It argues that if this case is 

analogous to a civil case, LaPointe's request for DNA testing is like a request for an 

injunction (an order to do a particular act) or a mandamus proceeding (a proceeding to 

compel someone or something to perform a specified duty). See K.S.A. 60-801; K.S.A. 

60-901. 

The State points out that its notice of appeal cited both K.S.A. 2014 Supp. 22-

3602(b), which provides for appeals by the State in criminal cases on questions reserved, 

and K.S.A. 2014 Supp. 60-2102(a)(2), which provides for appeals as a matter of right 

from orders granting or refusing injunctions and granting or refusing mandamus or 

habeas corpus relief. But the notice of appeal said specifically that the State was 

appealing upon a question reserved: "This appeal is taken to the Court of Appeals of the 
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State of Kansas upon a question reserved pursuant to K.S.A. 22-3602(b)(3), K.S.A. 60-

2101(a) and K.S.A. 60-2102(a)(2)." Moreover, in its opening brief, the State based its 

claim of appellate jurisdiction solely on the existence of a question reserved under K.S.A. 

2014 Supp. 22-3602(b)(3). 

To now consider this appeal on the ground that it is "analogous to a civil case," we

would have to ignore the State's stated basis for jurisdiction in its notice of appeal and 

opening brief and recharacterize LaPointe's "motion for post-conviction DNA testing,"

which was filed by counsel in his criminal case, as a civil petition for mandamus or 

injunction. The State does not obtain the right to appeal on a question reserved in a 

criminal case simply because the procedure used might be analogous to a civil 

proceeding. 

In sum, we do not have authority to consider this appeal. The appeal is therefore 

dismissed.