Opinion
No. 108,036.
2013-07-19
STATE of Kansas, Appellee, v. Ronald D. BEVAN, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. John A. Christiansen and Dennis Owens, of Kansas City, Missouri, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
John A. Christiansen and Dennis Owens, of Kansas City, Missouri, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ronald D. Bevan appeals his convictions of involuntary manslaughter, involuntary manslaughter while driving under the influence of alcohol, and aggravated battery. Bevan claims: (1) the district court erred in denying his motion in limine to exclude comments he made to his wife and to law enforcement; (2) the district court erred in denying his mid-trial request for a continuance to hire an expert witness; and (3) cumulative error deprived him of a fair trial. Finding no error, we affirm the district court's judgment.
On February 12, 2011, at approximately 3:45 p.m., there was a fatal collision on West Kellogg Avenue between Meridian Avenue and Seneca Street in Wichita, Kansas. About 9 a.m., Bevan and Matthew Noel had gone together in Bevan's silver Dodge pickup truck to Freddy's Frozen Custard, where they drank beer and waited in line for free concert tickets. Shortly after 11 a.m., they left Freddy's and drove to Noel's brother's house, where they played pool, drank some more beer, and Noel took a nap. Eventually, Bevan and Noel drove to Bevan's house where they retrieved Noel's red Chevy pickup truck. Now driving two trucks westbound on Kellogg, Bevan and Noel jockeyed for position on the roadway. Bevan was driving his silver Dodge pickup truck and Noel was driving his red Chevy pickup truck. Witnesses later testified that both men were driving at a high rate of speed.
As the two trucks were on Kellogg between Meridian Avenue and Seneca Street, Noel's truck drove left of the yellow fog line. When it hit the snow next to the median, the snow acted as a ramp, raising the left front corner of the truck so that the truck drove up onto the raised retaining wall. The truck skidded down the wall for approximately 100 feet, then dropped into the eastbound lanes and drove across all three lanes of eastbound traffic. Noel's truck collided with Michelle Randolph's car, which she had pulled to the right shoulder of the eastbound lanes to try to avoid a collision. Randolph suffered multiple injuries, and her 5–year–old daughter, Amber, died in the collision.
Multiple law enforcement officers responded to the scene. Bevan, with his wife now in his pickup, arrived at the scene of the collision. He spoke with several officers, first stating that his wife had been driving and that they were in front of Noel when a gray truck cut off Noel and started the chain of events. Bevan later stated that a silver van had cut off Noel. Bevan told another officer that his wife had been driving his truck and that they had just passed Noel's truck when he saw a car—which he later described as looking like a silver Ford Windstar—racing up behind them. According to Bevan, his wife veered to the right and Noel went left into the median. Later, Bevan admitted to a different officer that his wife had not been involved in the collision; rather, he had called his wife after the collision, worried because he had been drinking and driving, and she came and picked him up.
After witnesses told police that the Dodge pickup had forced the Chevy pickup into the median, officers took Bevan into custody. Bevan was taken to the hospital for a blood draw, where he admitted to at least two officers that he had consumed alcohol that day. While at the hospital, Bevan spoke with Detective William Crowe about Amber dying “because of these actions and reactions.” Bevan's blood sample contained 0.15 grams of alcohol per 100 ml. of blood, almost twice the legal limit for driving.
On March 9, 2011, the State charged Bevan with one count of aggravated battery and one count of murder in the second degree or, in the alternative, involuntary manslaughter while driving under the influence of alcohol or drugs (DUI). Prior to trial, Bevan filed a motion in limine seeking to exclude certain testimony at trial. Among other things, Bevan sought to exclude testimony that he had instructed his wife not to talk to law enforcement and told her that they would hire an attorney. The district court granted the motion with respect to the statement in which Bevan told his wife they would hire an attorney. In response to the ruling, Bevan stated that if the district court allowed testimony that he told his wife not to talk to the police, it should allow the statement about hiring an attorney as well. Bevan also sought to exclude testimony that he stated that “a little girl died because of his actions.” The district court found that this statement was admissible as an admission against interest under K.S.A.2010 Supp. 60–460(j).
The jury trial began on January 24, 2012. The State presented the testimony of 10 law enforcement officers who had been involved with investigating the collision. Also testifying for the State were five witnesses to the accident. One witness testified that the red truck lost control after a gray truck swerved toward it, while another testified that he saw a silver truck “running the orange truck into the wall and it went over the median.” A third witness testified specifically that a gray Dodge truck forced the red truck into the median and that the red truck then went over the median into eastbound traffic. Randolph testified for the State as well, as did the trauma surgeon who worked on Amber until she died, the forensic examiner who tested Bevan's blood sample, and the chief toxicologist and director of the Regional Forensic Science Center.
After the State rested its case, Bevan requested a continuance to try to obtain funding to hire an expert on accident reconstruction. According to Bevan's attorney, the Board of Indigent Defense Services (BIDS) had refused to pay for such an expert. The district court denied the motion for a continuance, stating that Bevan had had 10 months since the charges were filed in which to attempt to obtain an expert witness.
Bevan did not present any evidence at trial. After closing argument and deliberation, the jury found Bevan guilty as charged. Bevan filed posttrial motions, including a motion for judgment of acquittal or a new trial. Bevan argued, among other things, that the district court erred in allowing the State to present evidence about his statements to his wife that she should not to talk to the police and to the detective that a little girl had died because of his actions. Bevan also argued that the district court erred by denying the motion for a continuance to hire an expert witness. On April 4, 2012, the district court denied the posttrial motions and imposed a controlling sentence of 186 months' imprisonment. Bevan timely appealed the district court's judgment.
Motion in Limine to Exclude Evidence
Bevan argues that the district court erred in denying his motion in limine to exclude testimony that he instructed his wife not to talk to police and that they would hire an attorney. The State argues that this issue is not preserved for appeal because Bevan failed to contemporaneously object to the evidence at trial.
The challenged statements occurred at the collision scene when police officers indicated they wanted to speak with Bevan's wife. As Officer Michael O'Brien walked toward Bevan's wife, Bevan yelled, ‘ “Don't tell them anything. We will get an attorney.’ “ Bevan filed a motion in limine seeking to exclude these statements as evidence at trial. The district court granted the motion with respect to the statement in which Bevan told his wife they would hire an attorney. In response to the ruling, Bevan stated that if the district court allowed testimony that he told his wife not to talk to the police, it should allow the statement about hiring an attorney as well.
At trial, however, O'Brien testified on direct examination that as he walked toward Bevan's wife to speak with her, Bevan “yelled to her, ‘Don't tell them anything. We will get an attorney,’ and then as he got closer to the patrol car that Officer Duggan was leading him to, he yelled it again, ‘Don't talk to him. We will get an attorney.’ “ Bevan did not object to the testimony.
K.S.A. 60–404 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
In State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009), the Kansas Supreme Court noted that the contemporaneous-objection requirement of K.S.A. 60–404 is a salutary procedural tool that gives the district court the opportunity to conduct the trial without using tainted evidence and thus avoid possible reversal and a new trial. The Supreme Court went on to hold that, “in accordance with the plain language of K.S.A. 60–404, evidentiary claims—including questions posed by a prosecutor and responses to those questions during trial—must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.” 288 Kan. at 349.
Our Supreme Court also has held that “when a pretrial motion to suppress has been denied, the moving party must still object to introduction of the evidence at trial in order to preserve the issue for appeal. [Citation omitted.]” State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009); see also State v. Hernandez, 294 Kan. 200, 212, 273 P.3d 774 (2012) (“When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. [Citation omitted.]”); State v. Gaona, 293 Kan. 930, 955–56, 270 P.3d 1165 (2012) (same); State v. Wright, 290 Kan. 194, 207, 224 P.3d 1159 (2010) (same).
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011)rev. denied 294 Kan. –––– (2012). We have no indication that the Supreme Court is departing from its position in Hernandez and other recent cases. Bevan acknowledges that he did not object at trial to the testimony that he instructed his wife not to talk to police and that they would hire an attorney. Because Bevan did not make the required contemporaneous objection to the testimony at trial, the issue is not properly preserved for appeal, and he may not now challenge the denial of the motion in limine.
Likewise, Bevan argues that the district court erred in denying his motion in limine to exclude evidence of a statement he made that “a little girl died because of these actions and reactions.” Specifically, Bevan argues that the statement was inadmissible hearsay. Again, the State argues that this issue is not preserved for appeal because Bevan failed to contemporaneously object to the evidence at trial.
In his pretrial motion in limine, Bevan sought to suppress, among other things, any reference to a statement he made that a little girl died because of his actions. The district court denied the motion. The statement, or testimony similar to the statement, was mentioned multiple times during trial. First, during direct examination of Officer Kempf, the prosecutor asked, “Then did [Bevan] make any statements indicating whether he believed he was responsible for the crash or the death of a child in this situation?” Kempf replied, “Initially he was, had made statements that he didn't cause it, but later he stated that I caused a death, the death of a child, but it wasn't my fault, something along those lines.” Bevan did not object to this testimony. On cross-examination, Bevan's attorney brought up the statement again, asking, “[I]n general he said a little girl died because of my actions?” Kempf replied, “Yes, sir.” The statement was referred to a third time when the State recalled Detective Crowe and he testified that Bevan “talked about the little girl dying today because of these actions and reactions.” Again, Bevan did not object.
As previously stated, our Supreme Court has held that “[w]hen the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. [Citation omitted.]” Hernandez, 294 Kan. at 212. Because Bevan did not make the required contemporaneous objection to any of the testimony at trial, the issue is not properly preserved for appeal and he may not now challenge the denial of the motion in limine.
Motion for Continuance
Next, Bevan argues that the district court erred in denying his mid-trial oral motion for a continuance to retain an accident reconstruction expert. Bevan contends that the denial interfered with his constitutional right to present a defense and denied him a fair trial. The State counters that the district court considered the appropriate factors and made the proper ruling based on the information before it at the time of the request. The State also argues that any prejudice is purely speculative, since there is no evidence that an accident reconstruction expert would have advanced Bevan's theory of defense.
Kansas appellate courts review the denial of a motion for a continuance for abuse of discretion. State v. Beaman, 295 Kan. 853, 862–63, 286 P.3d 876 (2012). An abuse of discretion occurs if the judicial decision (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v.. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011)cert. denied132 S.Ct. 1594 (2012). Furthermore, when a criminal defendant claims that a district court has interfered with his or her constitutional right to present a defense, an appellate court reviews the issue de novo. State v. Suter, 296 Kan. 137, 144, 290 P.3d 620 (2012).
After the State rested its case and the parties and judge held the jury instruction conference, Bevan requested a continuance to try to obtain funding to hire an expert on accident reconstruction. Bevan's attorney notified the district court that BIDS had refused to pay for such an expert. The district court denied the motion for continuance, stating that Bevan had had 10 months since the charges were filed in which to attempt to obtain an expert witness.
After the verdict, in his motion for a new trial or judgment of acquittal, Bevan again raised the continuance issue. At the hearing on the motion for new trial, Bevan told the district court that his attorney did not tell him that they did not get funding for the accident reconstructionist expert until approximately 1 week before trial and that Bevan and his family would have paid for an expert privately if they had known in time that the funding request had been denied. Bevan further stated that they had located a willing expert before trial and that he was willing to pay for that expert but that his attorney told him to hold off while they requested funds from the State. The district judge noted that he had not been informed at the time of the request for a continuance that there was private funding or an expert available. The district court denied Bevan's motion for a new trial.
On appeal, Bevan does not claim that he was denied his constitutional right to present a defense by BIDS' decision to deny funding for an expert witness. Likewise, Bevan does not argue that the district court erred in denying his motion for a new trial or for judgment of acquittal; rather, he attacks only the denial of his motion for a continuance during the trial. When considering whether to grant a continuance so that a party may secure a witness' attendance, a court should consider many factors, including the “possible prejudice to the defendant, the diligence (or lack of it) disclosed in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if the continuance is granted.” State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976).
Here, Bevan's motion for a continuance was made after the State presented its evidence at trial. Bevan explained to the district court that BIDS had denied funding to employ an expert witness, but Bevan did not explain why he waited until nearly the end of the trial to ask for a continuance to retain an expert witness. In fact, Bevan later acknowledged at the hearing on the motion for new trial that he learned approximately 1 week before trial that BIDS had denied the funding request. Also, Bevan did not inform the district court at the time of his request for a continuance that he had private funding available and an expert ready to be retained. Bevan was unable to explain to the district court the specific testimony that he expected the expert witness to supply and how the evidence would have supported his theory of defense. Considering the information before the district court at the time Bevan requested a continuance, and considering the timing of the request near the end of the jury trial, we conclude the district court did not abuse its discretion in denying the continuance.
Cumulative Error
Finally, Bevan argues that cumulative error denied him a fair trial. “Cumulative trial errors, when considered collectively, may require reversal of the defendant's convictions when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Smith, 296 Kan. 111, 134, 293 P.3d 669 (2012). Nevertheless, “ ‘[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]’ “ State v. Stafford, 296 Kan. 25, 60, 290 P.3d 562 (2012). Accordingly, because none of Bevan's claims of error are successful, his claim of cumulative error fails as well.
Affirmed.