Opinion
No. 108 316.
2013-10-25
CITY OF OLATHE, Appellee, v. Lori A. McGREGOR, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Lori A. McGregor, appellant pro se. Michael T. Tharp, assistant city prosecutor, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Lori A. McGregor, appellant pro se. Michael T. Tharp, assistant city prosecutor, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lori A. McGregor appeals from a finding by the district court that she was guilty of failing to stop at a stop sign. Finding no error or constitutional infringement, we affirm.
Facts
At approximately 3:45 p.m. on August 4, 2011, Officer Wesley Clark was on routine patrol in Olathe, Kansas, when he came to a stop sign at the intersection of Harrison Street and Southgate Street. Officer Clark's patrol truck was the third vehicle in a line of vehicles on Harrison Street waiting at the stop sign, which was also marked with a stop line on the ground. The first vehicle was a black truck and had stopped at the stop sign. Stopped behind this truck was a silver Cadillac belonging to McGregor. Officer Clark testified and his patrol truck video showed that after the black truck proceeded through the intersection, McGregor followed through the intersection without stopping. Officer Clark stopped McGregor a half a mile down the road, explained why he had stopped her, and issued a traffic citation for failure to stop at a stop sign.
At a hearing on August 19, 2011, in the Olathe Municipal Court, McGregor moved for access to the patrol video. At a later hearing on September 27, 2011, the municipal court found her motion to have been satisfied because the City of Olathe (City) had the video, offered to show it to McGregor right after the hearing or at a later day by appointment, and told McGregor she could purchase a copy of the video. Before her trial in municipal court, McGregor filed a Request for Production of Documents and Things in which she again requested a copy of any video recording of the traffic stop as well as any field notes intended to be used at trial. Among several other motions, McGregor also filed a motion to suppress evidence. At the trial on November 14, 2011, the municipal court denied all her motions. In so doing, the court noted that McGregor was shown the video on September 27, 2011, and was offered the opportunity to see it again or to purchase a copy. The court ultimately found McGregor guilty of failure to stop at a stop sign under City of Olathe Municipal Code (O.M.C.) 10.01.059(b) (2008) and fined her $125.
McGregor appealed to the district court. At the district court trial on March 15, 2012, McGregor objected to the admission of the patrol video into evidence, claiming it was not timely produced to her as part of discovery. The district court then allowed both parties to view the video in chambers. McGregor also objected to the field notes referenced by Officer Clark during his testimony, alleging the City had claimed there were no field notes when she previously requested them during discovery. The district court found the video showed what happened; thus, it said the field notes would not have made any difference because they would not have exculpated her or cast doubt on something Officer Clark said. Finally, McGregor asserted during her testimony that she thought the ordinance was unconstitutionally vague.
The district court found the video showed McGregor's car pulling up to the intersection behind a black truck, the truck stopping at the line (possibly a foot over or a foot behind the line), McGregor's car stopping with the truck, and McGregor's car following the truck through the intersection without making another stop. The court also found the evidence showed there was a clearly marked stop line with some wear marks at the stop sign. Finding the ordinance does not allow a person to stop behind one car who stops at the stop sign and follow it through without even stopping, the district court concluded McGregor did not stop at the stop sign. It noted that stopping 8 feet behind the stop line is not stopping “at the stop line.” Finally, it held the ordinance was not unconstitutionally vague. In light of these findings, the district court found McGregor guilty of violating the ordinance for failing to stop at a stop sign, fined her $125, and assessed costs against her.
Analysis
On appeal, McGregor claims that (1) the City's failure to stop ordinance is unconstitutionally vague, (2) the district court erred in failing to sanction the City for several alleged discovery violations and/or instances of prosecutorial misconduct, (3) the district court erred in finding her guilty of failing to stop at a stop sign, (4) she did not receive a fair trial because she could not develop her defense, and (5) the stop was unconstitutional. We address each of these claims in turn.
1. The ordinance is not unconstitutionally vague.
McGregor contends that O.M.C. 10.01.059(b) is unconstitutionally vague as applied to the facts of her case. The portion of this ordinance that McGregor challenges states:
“Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it.”
Whether an ordinance is unconstitutionally vague is a question of law subject to unlimited review on appeal. This court presumes that the challenged legislation is constitutional and all doubts must be resolved in favor of the legislation's validity. State v. Rupnick 280 Kan. 720, 736, 125 P.3d 541 (2005). It is the duty of the court to uphold the legislation under attack, if possible, rather than defeat it. If there is any reasonable way to construe the legislation as constitutionally valid, this court should construe it in that manner. State v. Martis, 277 Kan. 267, 298, 83 P.3d 1216 (2004).
Kansas courts use a two-part test to determine whether an ordinance is unconstitutionally vague and in violation of due process. First, we consider whether the ordinance conveys a sufficiently definite warning and fair notice of the proscribed conduct when measured by a common understanding and practice. Second, the court considers whether the ordinance adequately guards against arbitrary and discriminatory enforcement by providing explicit standards for its enforcement. Rupnick, 280 Kan. at 737.
In support of her constitutional challenge, McGregor claims the word “at” in the phrase, “shall stop at a clearly marked stop line” is vague as applied to the facts of her case. Specifically, McGregor argues the ordinance fails to provide fair notice that a driver who is stopped 8 feet from a clearly marked stop line behind a car stopped over the stop line is required to move closer to the clearly marked stop line and stop again before moving forward. But there is no constitutional requirement that legislation be written with mathematical certainty to be enforceable. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The only requirement related to vagueness is that the legislation convey a sufficiently definite warning and fair notice of the proscribed conduct when measured by a common understanding and practice. Rupnick, 280 Kan. at 737. In other words, the ordinance is constitutional if it gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. 280 Kan. at 739.
Significantly, the word “at” is not a legal term of art; it is a common term used in everyday language and defined by the dictionary as a preposition “used as a function word to indicate presence in, on, or near.” See Webster's Third New International Dictionary 136 (1993). Using the common meaning of this term, the ordinance at issue here requires every driver of a vehicle approaching a stop sign to stop in, on, or near a clearly marked stop line. Given the facts presented and the common understanding of the language used in the ordinance at issue here, we conclude as a matter of law that the ordinance sufficiently conveys a definite warning and fair notice of the proscribed conduct and adequately guards against arbitrary and discriminatory enforcement. In light of this finding, there is no merit to McGregor's claim that the municipal ordinance is unconstitutionally vague.
2. The district court did not abuse its discretion in declining to impose sanctions.
McGregor asserts the City's failure to provide Officer Clark's field notes and the patrol video to her before trial constitutes a failure to produce discovery as ordered by the district court and, because the City's failure to follow the court order prejudiced her, the guilty verdict against her should be vacated.
Trial courts have wide discretion under K.S.A.2011 Supp. 22–3212(g) to impose sanctions for a party's discovery violations. See State v. Schilling, 238 Kan. 593, 601, 712 P.2d 1233 (1986); State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972). Judicial discretion is abused when the action taken by the district court is arbitrary, fanciful, or unreasonable. When reasonable persons could differ as to the propriety of the court's action, then the district court did not abuse its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009), disapproved on other ground by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013).
Under K.S.A.2011 Supp. 22–3212(g), if it is brought to the attention of the district court that a party has failed to comply with the discovery rules or a court order regarding discovery, “the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.”
Before imposing any of these sanctions, trial courts should consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances. Trial courts may also consider the presence or lack of good faith and whether the party's action was willful or intentional. Sanctions may be particularly appropriate when there is a recurring problem or repeated instances of intentional failure to disclose or to abide by the court's discovery rulings. Although adequate sanctions are necessary to enforce discovery procedures, “ ‘[d]ismissal of an action is a drastic remedy which should be used only in extreme circumstances. Ordinarily, the court should impose the least drastic sanctions which are designed to accomplish the objects of discovery but not to punish.’ “ State v. Gaillard–Taylor, No. 100,668, 2010 WL 1882142, at *4 (Kan.App.) (unpublished opinion) (quoting State v. Winter, 238 Kan. 530, 534, 712 P.2d 1228 [1986] ),rev, denied 290 Kan. 1098 (2010). However, dismissal of an action may be an appropriate sanction where the discovery violations would prevent the defendant from receiving a fair trial, i.e., when the defendant suffers actual prejudice. Gaillard–Taylor, 2010 WL 1882142, at *4. a. Alleged discovery violations
In this case, McGregor claims the City failed to provide Officer Clark's field notes and the patrol video to her before trial. On August 19, 2011, in the Olathe Municipal Court, McGregor moved for access to the patrol video. She again requested a copy of any video recording of the traffic stop as well as any field notes intended to be used at trial in her Request for Production of Documents and Things before her municipal court trial. In response to her request to provide a copy of any video recording of the traffic stop, the City stated: “Video and audio provided to Defendant.” The City also noted that there was “[n]one” in response to McGregor's request to provide “a copy of any field notes or memo that the prosecution or Sgt. Clark intends to use at trial for any purpose.” McGregor objected to both the video and Officer Clark's field notes when they were allowed at trial, claiming they were not timely provided to her as part of discovery.
With regard to the patrol video, however, the record clearly shows that the municipal court repeatedly found her request to view the patrol video had been satisfied. At the hearing on September 27, 2011, the municipal court found her motion for access to the video to have been satisfied because the City had the video, offered to show it to McGregor right after the hearing or at a later day by appointment, and told McGregor she could purchase a copy of the video. At her trial on November 14, 2011, the municipal court again noted that McGregor was shown the video on September 27, 2011, and was offered the opportunity to see it again or to purchase a copy. In addition, upon McGregor's objection to the video at the trial before the district court, the district court allowed both parties to view the video in chambers. Because McGregor has failed to come forward with facts to establish that the City failed to comply with the Kansas discovery statute in the first instance, we necessarily conclude the district court did not abuse its discretion in declining to impose sanctions against the City under K.S.A.2011 Supp. 22–3212(g). See Gant, 288 Kan. at 81–82.
As to the field notes referenced by Officer Clark during his testimony, McGregor asserts K.S.A. 22–3213 specifically required the district court to make these notes available to her following Officer Clark's testimony:
“(2) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified....
....
“(4) The term ‘statement,’ as used in subsections (2) and (3) of this section in relation to any witness called by the prosecution means
(a) a written statement made by said witness and signed or otherwise adopted or approved by him [or her].” K.S.A. 22–3213(2), (4)(a).
To fall within the scope of this statute, Officer Clark's field notes must be categorized as a “statement” as that term is defined in K.S.A. 22–3213(4)(a). Here, the trial transcript shows Officer Clark referenced notes he made on his copy of the citation that described a “black truck” in front of McGregor's car. There appears to be no dispute that Officer Clark's notes are merely scattered jottings and not a formal memorandum or report. Officer Clark did not sign them, and nowhere is there any indication that he has adopted them as a statement. For these reasons, we find Officer Clark's notes were not discoverable statements under K.S.A. 22–3213(4)(a) as McGregor claims. See State v. Johnson, 297 Kan. 210, 216–17, 301 P.3d 287 (2013) (questioning whether requirement to produce witness statements as set forth in K.S.A. 22–3213[2] was ever intended to apply to field notes of a law enforcement officer).
Although the notes are not subject to disclosure under K.S.A. 22–3213(4)(a), fundamentals of due process require the government to produce them if the evidence they contain is exculpatory or would be of value in impeaching government witnesses. Giglio v. United States, 405 U.S. 150, 153–54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In this case, the district court judge appropriately considered the extent of any prejudice to McGregor if she did not receive a copy of the field notes and found there would be none, “[T]here has to be some—it has to mean something. It has to provide you with something that would mean you're not guilty or would cast doubt on something the City said.” Accordingly, we find McGregor was not prejudiced by the district court's decision to allow Officer Clark to read from his field notes during his testimony without providing them to McGregor before she cross-examined him. b. Alleged prosecutorial misconduct
McGregor also claims on appeal the alleged discovery violations and a statement made in the City's brief on appeal constitute prosecutorial misconduct. Our standard of review with regard to alleged misconduct by the prosecutor involves a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
We note, as a preliminary matter, that McGregor did not raise any prosecutorial misconduct issues to the district court below, and issues not raised before the district court cannot be raised on appeal. State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). But McGregor argues she can raise prosecutorial misconduct issues for the first time on appeal because our Supreme Court has adopted the “plain error” rule for cases of prosecutorial misconduct. This rule allows an appellate court to consider claims of prosecutorial misconduct that have not been preserved for appeal where “ ‘the prosecutor's misconduct is so prejudicial or constitutes a constitutional violation which, if not corrected, will result in injustice or a miscarriage of justice.’ “ State v. King, 288 Kan. 333, 344, 204 P.3d 585 (2009) (quoting State v. Sperry, 267 Kan. 287, 308–09, 978 P.2d 933 [1999] ). In making her argument, however, McGregor fails to cite to the portion of King limiting this plain error rule to a prosecutor's comments to a jury during voir dire, opening statement, or closing argument; evidentiary claims must still be preserved by way of a contemporaneous objection to be reviewed on appeal. King, 288 Kan. at 349; see K.S.A. 60–404.
Even if this court were to find the allegations of misconduct against the prosecutor that relate to discovery and briefing were not evidentiary in nature, McGregor's claims of prosecutorial misconduct still fail. This is because, as already discussed, the City did not commit any discovery violation regarding the patrol video because the prosecutor made it available to McGregor before trial. And we already have determined that the City was not required to turn over Officer Clark's field notes either before or after Officer Clark testified.
With regard to McGregor's allegation of prosecutorial misconduct related to the City's brief on appeal, McGregor appears to claim that the City's brief contains a misstatement of fact. McGregor says the statement in the City's statement of facts that her car “was second in line and she proceeded through the intersection going straight without stopping” falsely implies that she did not stop at all before proceeding through the intersection. Apart from the fact that she is inappropriately framing this as an issue of prosecutorial misconduct, McGregor takes this statement out of context. The preceding paragraph states that Officer Clark “came to a stop at a stop sign” and was the third vehicle in a line of three vehicles at the stop sign. The sentence immediately preceding the allegedly misleading statement also clearly discloses that the first vehicle was properly stopped at the stop sign. Thus, the entire statement of facts correctly indicates that all three vehicles were stopped at the stop sign before McGregor drove through the intersection.
3. There was sufficient evidence to support the district court's finding of guilt.
McGregor contends the district court erred in finding her guilty of failing to stop at the stop sign under O.M.C. 10.01.059(b). She asserts that the line was faded; thus, she only had to stop where she would avoid any collision with a car coming through the intersection from the other bisecting road and where she would be at a safe distance from the railroad tracks on the other side of the bisecting road. She further asserts she had no duty to stop again at the same point where the black vehicle in front of her had stopped at the sign because it stopped over the line and she had stopped an appropriate distance from the line to begin with. As the City notes, this is a sufficiency of the evidence issue.
There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court to preserve the issue for appeal. State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008).
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Sufficient evidence is evidence necessary to convince a rational trier of fact beyond a reasonable doubt of the existence of every essential element of the offense. Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560,reh. denied444 U.S. 890 (1979). More than a “ ‘mere modicum’ “ of evidence is required to support a conviction beyond a reasonable doubt. 443 U.S. at 320.
In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
McGregor was cited for failing to stop at a stop sign on August 2, 2011, at 3:44 p.m. in Olathe, Kansas, under O.M.C. 10.01.059(b). This ordinance, the wording of which mirrors that in K.S.A. 8–1528(b), states:
“Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways.” K.S.A. 8–1528(b); O.M.C. 10.01.059(b).
Thus, the City had to prove that McGregor failed to stop at a clearly marked stop line on August 4, 2011, around 3:45 p.m. in Olathe, Kansas.
The City presented testimony from Officer Clark that on August 4, 2011, at approximately 3:45 p.m. he came to a stop sign at the intersection of Harrison Street and Southgate Street in Olathe. Officer Clark stated that his patrol truck was the third vehicle in a line of vehicles on Harrison Street waiting at the stop sign, which was also marked with a stop line on the ground. He testified that the black truck had stopped at the stop sign and McGregor's silver Cadillac stopped right behind it. Officer Clark testified that after the black truck proceeded through the intersection, McGregor followed through the intersection without stopping. The district court found Officer Clark's testimony to be credible. This court does not reweigh the credibility of witnesses. See Hall, 292 Kan. at 859. Furthermore, McGregor herself testified that she stopped her car 8 feet behind the stop line.
In addition, the City presented Officer Clark's patrol video, which showed a silver Cadillac in front of the patrol truck as it approached the intersection. A black truck could be seen stopping at the stop sign in front of the Cadillac. In the video, the Cadillac also came to a stop behind the black truck. As the black truck accelerated through the intersection, the video showed the Cadillac immediately following it through the intersection without stopping.
Despite this evidence, McGregor appears to argue that because the stop line was faded, the second half of the first sentence of O.M.C. 10.01.059(b) is applicable. That portion states that if there is no clearly marked stop line or crosswalk, the driver shall stop at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. O.M.C. 10.01.059(b). She contends that she stopped at a safe distance from the intersection.
However, Officer Clark testified that the stop line was clearly marked and continuous. Specifically, Officer Clark stated that although the stop line had some “tire wear” in the middle that caused a portion of it to be faded, it was clear enough that he would know to stop there. The patrol video and McGregor's own exhibits also show a clearly marked stop line with some fading in the middle where tires had passed over it. The white portions at the edges and middle of the line are clearly visible. Although McGregor testified that she did not notice the stop line, she also testified that she had “noticed that people stop halfway over the line fairly frequently,” thereby admitting that there is a visible line on the road.
Viewing the evidence in a light most favorable to the City, the City presented sufficient evidence to show that McGregor had a duty to stop at the stop line under O.M.C. 10.01.059(b) and that McGregor failed to stop at the clearly marked stop line on August 4, 2011, at around 3:45 p.m. Based on the above evidence, a rational factfinder could have found beyond a reasonable doubt that McGregor was guilty of failing to stop at a stop sign in violation of O.M.C. 10.01.059(b). Therefore, the evidence was sufficient to support the district court's finding that McGregor was guilty.
4. McGregor received a fair trial
McGregor asserts she was denied a fair trial. First, she makes several sufficiency of the evidence arguments, which we already have found have no merit. Second, she claims the district court did not allow her to develop her defense at trial. Third, she appears to contend she was denied a fair trial because her motion to suppress was denied by the Olathe Municipal Court.
The Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights guarantees a defendant's right to a fair trial. See Ferguson v. State, 276 Kan. 428, 431, 78 P.3d 40 (2003). A fair trial anticipates the right to object to the admission of evidence, the right to cross-examine the witnesses, and the right to rebut the evidence introduced. The right to a fair trial also includes the right to establish a defense. State v. Villanueva, 274 Kan. 20, 32, 49 P.3d 481 (2002). The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires a criminal defendant be afforded a meaningful opportunity to present a complete defense. The right to present a defense is subject to statutory rules and caselaw interpreting the rules of evidence and procedure. State v. Jones, 47 Kan.App.2d 512, 519, 276 P.3d 804 (2012). a. Right to establish a defense
McGregor claims the district court did not allow her to develop her defense at trial because it did not allow her to question Officer Clark regarding her theory that the stop line was faded, which if true would have permitted her under the statute to have stopped at a safe distance from the stop sign instead of at the stop line. Specifically, McGregor complains that the court stopped her from questioning Officer Clark about the angle of the intersecting roadway, the parking lot to McGregor's right at the stop sign, and the location of the intersecting railroad tracks on the other side of the intersection. McGregor essentially is challenging the district court's evidentiary rulings during her cross-examination of Officer Clark. Whether an evidentiary ruling violated the defendant's constitutional rights is reviewed de novo. See State v. White, 279 Kan. 326, 331–33, 109 P.3d 1199 (2005).
When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. K.S.A. 60–407(f); State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan 252, 261–62, 213 P.3d 728 (2009). In general, to be material, the fact proved must be significant under the substantive law of the case and properly at issue. Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (quoting K.S.A. 60–401[b] ). The issue of whether evidence is probative is reviewed under an abuse of discretion standard whereas the materiality of evidence is reviewed de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
In this case, the district court repeatedly stopped McGregor in her cross-examination of Officer Clark because it apparently did not find her questioning to be relevant to the issue of whether she stopped at a clearly marked stop line as required under O.M.C. 10.01 .059(b).
As discussed above, the record contains sufficient evidence supporting the district court's finding that the white line was clearly visible. As a result, the only portion of O.M.C. 10.01.059(b) that was applicable to McGregor's case was the phrase “every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line.” Yet McGregor's entire defense depended on the applicability of the second half of this sentence, which states that “but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it.” O.M.C. 10 .01.059(b). Because the white line was clearly marked, however, this provision was not at issue in this case.
Consequently, any evidence or questioning regarding McGregor's justifications for stopping somewhere other than at the stop line was irrelevant to the issue of whether McGregor stopped at that line. Thus, the district court correctly stopped McGregor from asking questions about whether vehicles from the intersecting roadway might run into someone stopped at the stop line due to the angle of the intersecting road and the location of the entrance to the parking lot because these were not material facts. Likewise, whether McGregor stopped at the required distance from the intersecting railroad tracks under K.S.A. 8–1552 was not a material fact. Whether another vehicle in a photograph taken later by McGregor was stopped legally at the stop line was also not material. In addition, the estimated length of the black truck in front of McGregor likewise was not material, since stopping almost an entire car's length behind the stop line would not be stopping at the stop line in compliance with the ordinance, regardless of the length of the vehicle in front of her. McGregor had a duty to stop at the line regardless of all these other facts. Thus, the district court did not err in excluding her line of questioning on these issues as irrelevant. b. Motion to suppress
McGregor seems to claim she was denied a fair trial because her motion to suppress was denied by the Olathe Municipal Court. However, it does not appear that she filed a motion to suppress or raised those issues with the district court in her appeal from the municipal court's decision. Under K.S.A. 22–3610(a), when a criminal case is appealed from a municipal court to a district court, the case is tried de novo in the district court. City of Salina v. Amador, 279 Kan, 266, 270, 106 P.3d 1139 (2005). Issues not raised before the trial court cannot be raised on appeal. Leshay, 289 Kan. at 553. Thus, McGregor's failure to reraise the suppression issues to the district court waived them for consideration on appeal.
5. Officer Clark's stop of McGregor was constitutional.
McGregor's last argument on appeal is that the traffic stop conducted by Officer Clark was illegal under the Fourth Amendment to the United States Constitution. Making many of the same arguments as in her sufficiency of the evidence claim, she appears to claim Officer Clark did not have reasonable suspicion to pull her over and did so in retaliation for having to testify in another case involving McGregor the previous week.
However, as just discussed, McGregor waived this issue by failing to raise it to the district court when appealing from the municipal court's decision. Issues not raised before the trial court cannot be raised on appeal. Leshay, 289 Kan. at 553.
Affirmed.