Opinion
No. 108,753.
2013-11-22
STATE of Kansas, Appellee, v. William C. FOOS, Appellant.
Appeal from Sedgwick District Court; Eric Commer, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jessica Fiegel, legal intern, Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric Commer, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jessica Fiegel, legal intern, Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, PJ., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
William Foos appeals his jury trial conviction for driving under the influence of alcohol, Foos argues that the trial court erred in denying his motion for a new trial because the prosecutor elicited highly prejudicial testimony from the State's expert in violation of the court's orders. We disagree. Accordingly, we affirm.
On October 29, 2010, Foos crashed his car head-on into a tree. When officers arrived on the scene they smelled a strong odor of alcohol on Foos' breath and noticed that his eyes were “glazed and watery.” Foos also acted sluggish when getting out of his car. Based on these observations, Officer Christopher Hornberger decided to conduct field sobriety tests on Foos.
Officer Hornberger had Foos perform two field sobriety tests—the walk and turn test and the one-leg-stand test. Foos failed the walk and turn test. Officer Homberger then asked Foos to submit to a breath alcohol test. Officer Tim Noone arrived at the scene in the breath alcohol test (BAT) van which contained an Intoxilyzer 8000.
Officer Noone conducted the breath test on Foos. Officer Homberger watched as Foos took the breath test and noticed that Foos had placed his tongue over the mouthpiece which prevented the machine from getting a proper reading. The test returned a reading of “purge fail.”
After the improper reading on the breath test, Officer Homberger asked Foos to take a new breath test or a blood test. Foos responded, “[A]ll of your machines are broken,” and, “I don't know.” Officer Homberger then placed Foos under arrest for a DUI refusal.
At trial, Christine Houston, breath alcohol program supervisor from the Kansas Department of Health and Environment (KDHE), testified about the Intoxilyzer 8000 and what a reading of “purge fail” means. Houston testified that a “purge fail” means the Intoxilyzer 8000 “was unable to clear the alcohol that was introduced” during the defendant's breath test and thus “aborted the test.” Houston explained that Intoxilyzer 8000 was working properly before the “purge fail” and that a “purge fail” only indicates that there was alcohol left in the sample chamber during the air blank. Houston further stated, “The amount of alcohol it would take to reach a level [for a ‘purge fail’ reading] would have to be substantial.” Defense counsel objected to this statement and the objection was sustained.
April Hudlin, Foos' girlfriend also testified at trial. At trial, Hudlin testified that Foos had a glass of wine at dinner and no other alcoholic drinks. Hudlin testified that Foos was trying to kiss her when he crashed his car.
In contrast, the State presented testimony from Officer Chad Remy who spoke with Hudlin on the night of the accident. Officer Remy testified that Hudlin told him that Foos had consumed “five to six glasses of wine while they were at a restaurant called the Olive Garden.” Officer Remy further testified that Hudlin told him that after dinner Foos had a beer at a bar and that he was “buzzed” and “pretty intoxicated.”
The jury convicted Foos of felony DUI. Foos then moved for a new trial arguing that inadmissible evidence was allowed to be testified to. The trial court held a hearing on the motion before sentencing and denied the motion finding that there was sufficient evidence to convict Foos. Did the trial court err in denying Foos' motion for a new trial?
Foos argues that the State violated the order in limine which prevented the State from presenting evidence on the results of Foos' breath test. As such, Foos argues that the State's violations are reversible error. Foos timely objected to the testimony and the trial court sustained his objection. Foos maintains that this testimony was highly prejudicial to him and that he is entitled to a new trial.
“The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A.2012 Supp. 22–3501. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012).
In Foos' motion for new trial, he argued, among other things, that the State's witness violated the order in limine which prevented the State from presenting evidence on the results of his breath test. When a party alleges that an order in limine has been violated, the trial court must determine (1) whether the order has been violated, and if so, (2) whether the party alleging the violation has established substantial prejudice resulting from that violation. State v. Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012). Because the trial court is in the best position to determine these issues, its determination on these matters will not be disturbed absent a clear abuse of discretion. Breedlove, 295 Kan. at 494.
Where a prosecutor has allegedly violated a motion in limine, the reviewing court must consider the prosecutorial misconduct factors in determining whether the defendant was prejudiced by the violation. State v. Shadden, 290 Kan. 803, 835–36, 235 P.3d 436 (2010).
Here, we must determine whether the trial court abused its discretion by denying Foos' motion for a new trial based on a violation of an order in limine. As stated earlier, we must first determine whether a violation of the order in limine occurred. If it did, then we must next determine whether the testimony substantially prejudiced Foos.
Before trial, Foos moved in limine to prevent the breath test results from being presented arguing that the “purge failure” made the results unreliable and inadmissible. The trial court granted the motion in part and denied it in part. The trial court stated:
“State is directed that no witness shall reference the numeric reading in conjunction with the breath test that was done. Otherwise counsel may provide evidence as to what witnesses or defendant observed and/or did and what Intoxilyzer 8000 did and what were potential causes.”
At trial, the State asked Houston, the breath alcohol program supervisor from the KDHE, what the purpose of a purge failure was. Houston answered, “The purpose of that is to just show that the instrument was unable to clear the alcohol and to ensure ...” Foos' attorney then objected and cut-off Houston's response. In a side-bar conference, the trial judge stated, “I'll allow you to ask the question of whether this test indicated the presence of alcohol in the subject test sample for Mr. Foos, but not the amount.” The State then continued questioning Houston and the following exchange occurred:
“[THE STATE:] Does the purge fail which took place after the subject test in any way affect the value of the subject test?
“[HOUSTON:] No.
“[THE STATE:] How do you know?
“[HOUSTON:] Well, because the purge fail, all it tells you is that there was alcohol left in the sample chamber during the air blank. It has—Unless the alcohol materialized somewhere else, from somewhere else, it would be an impossibility. Not only that, but the amount of alcohol that it would take to reach a level would have to be substantial
“[DEFENSE COUNSEL:]” Your Honor, I will object on previous reasons granted.
“[THE COURT:] Sustained.
“[THE STATE:] I don't want to know the subject test. If you have that information, I don't want to know it. But I am interested in whether Mr. Foos' test indicated the presence of alcohol in his system.
“[HOUSTON:] Yes.”
The trial court did not admonish the jury to disregard the evidence nor declare a mistrial.
The order in limine clearly restricted the presentation of the numeric reading from the breath test but did not restrict testimony regarding the presence of alcohol in Foos' system. Although Houston testified that the amount of alcohol needed to reach a purge fail would have to be substantial, the term substantial is not a numeric value. Thus, we find that Houston's testimony did not violate the order in limine. Substantial Prejudice
For argument's sake, even if the order in limine was violated, Foos needed to show that he was substantially prejudiced by the violation. See State v. Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004) (explaining the burden is on the defendant to show substantial prejudice).
Foos argues that Houston's testimony was highly prejudicial because the jury could have inferred that the alcohol from Foos' breath test had been of a sufficient amount to be over the legal limit.
In denying Foos' motion for new trial, the trial court stated:
“Though the Court, on the defendant's motion, did not admit the measured result of the test, there was sufficient testimony from, I believe, that testing equipment to indicate a clarity of there being alcohol in the defendant's breath test. That was for the jury then to weigh in consideration of all of the evidence as to whether or not the defendant was under the influence of alcohol on the date and time of this incident.
....
“... I believe the evidence was sufficient to support the verdict rendered by the jury.
“The Court will deny the Motion for a New Trial or for a Verdict of Not Guilty Not Withstanding [ sic ] the Verdict of Guilty.”
The cumulative evidence against Foos, specifically the fact that Foos crashed his car head-on into a tree after crossing multiple lanes of traffic, that officers smelled alcohol on Foos' breath, that Foos' girlfriend made statements to officers that Foos had consumed five or six glasses of wine at dinner and a beer at a bar before driving, that Foos had failed a field sobriety test, and that Foos refused a blood test, was so overwhelming that there was little or no likelihood the prosecutor's violation of the order in limine changed the result of the trial. Based on these facts, it is readily apparent that even if the testimony did violate the order in limine, it did not substantially prejudice Foos.
We determine that the trial court properly denied Foos' motion for a new trial.