Opinion
No. 106,963.
2012-10-5
STATE of Kansas, Appellee, v. Jimmy L. STUART, Appellant.
Appeal from Douglas District Court; Barbara Kay Huff, Judge. Michael E. Riling, of Riling, Burkhead, & Nitcher, Chartered, of Lawrence, for appellant. Samantha Clark, legal intern, Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Barbara Kay Huff, Judge.
Michael E. Riling, of Riling, Burkhead, & Nitcher, Chartered, of Lawrence, for appellant. Samantha Clark, legal intern, Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following a bench trial, the district court convicted Jimmy L. Stuart of driving under the influence (DUI) and refusal to take a breath test. This was Stuart's fourth DUI conviction. On appeal, Stuart claims the district court erred in classifying the DUI for sentencing purposes. He also contends that his statutory and constitutional rights were violated because he was not present when the district court issued its verdict finding him guilty as charged. We affirm.
On December 12, 2009, shortly after 9 p.m., off-duty Kansas Highway Patrol Trooper Dennis Shoemaker and his wife were returning home and observed a truck in a ditch on U.S. Highway 59, in Douglas County. Shoemaker's wife was driving, and she pulled to the side of the road so Trooper Shoemaker could check on the driver. Shoemaker approached the vehicle, identified himself as an off-duty state trooper, and found a man seated in the driver's seat. The driver told the trooper he was okay, and Trooper Shoemaker asked for his driver's license and insurance.
Trooper Shoemaker called dispatch to report the single-vehicle accident. When the driver gave Trooper Shoemaker his Kansas driver's license, it identified him as Jimmy Stuart. While waiting for an on-duty officer to arrive, Stuart tried to exit his vehicle but stumbled and fell against the side of his truck. When Troopers Josh Kellerman and Neil Stanley arrived, Shoemaker told Kellerman that he had observed Stuart fall out of the truck but did not notice an odor of alcohol. Shoemaker then left.
Because of traffic, Trooper Kellerman escorted Stuart to the patrol car so they could safely speak. Kellerman observed Stuart stumble a few times, observed a slight odor of alcohol, slurred speech, and extremely bloodshot eyes. Kellerman asked Stuart if he had been drinking; Stuart replied that he had consumed a couple of beers, the last one being about 35 minutes prior, and ended up in the ditch because he missed a left turn.
Trooper Kellerman asked Stuart to perform two field sobriety tests. The tests were conducted in front of the patrol car on a flat portion of the shoulder of the roadway. Trooper Kellerman asked Stuart to perform the walk-and-turn test. During the test, Stuart had difficulty maintaining his balance and maintaining the starting position, never touched heel to toe, took 20 steps each way, even though he was only instructed to take 9, nearly fell during the turn, and stumbled off the line. Kellerman also asked Stuart to perform the one-leg-stand test. Stuart failed to count aloud, placed his foot down approximately nine times during the first 20 seconds, nearly fell over, and ended the test before he was instructed to do so.
Trooper Kellerman informed Stuart that he believed Stuart was impaired. The two returned to the patrol car where Kellerman asked Stuart to submit to a preliminary breath test (PBT), After several minutes of Stuart informing Kellerman of his problems, Kellerman said, “I'm dying.” Stuart refused to submit to the PBT, and Trooper Kellerman arrested Stuart for DUI.
During the drive to the Douglas County Jail, Stuart continually told Trooper Kellerman about his life troubles and long-term depression. Stuart told Kellerman he had “tried to hurt himself for a long time” but that he was not going to admit to feeling suicidal. Stuart then said, “My well-being is gone, my life, my children.” Stuart told Kellerman that this “kills me, kills everything I have in life,” I've “been depressed for so long, this just isn't going to work,” and I “might as well commit suicide.” Based on these comments and several others, Trooper Kellerman told Stuart that he would have to take him to the hospital, to which Stuart replied that he understood.
Trooper Kellerman first took Stuart to the Douglas County Jail, where he attempted to collect an evidentiary breath test without success. The only sample Kellerman was able to collect was invalidated because Stuart failed to follow proper protocol. Then Trooper Kellerman transported Stuart to Lawrence Memorial Hospital (LMH) to obtain a mental health screening. They arrived at LMH at 10:53 p.m. and Kellerman asked Stuart to provide a blood sample; Stuart declined.
At LMH, Stuart was treated by registered nurse Sarah Martin in the crisis stabilization unit. Stuart informed Martin that he had consumed 3 or 4 beers and “felt like he wanted to end it all.” Pursuant to LMH's standard protocol for mental health screenings, Martin administered a blood test to determine if Stuart's blood-alcohol content (BAC) was too high for a mental health screening. The results of the blood test indicated that Stuart's BAC was .210 grams per deciliter.
Stuart was charged with DUI and refusal to submit to a PBT. This DUI was Stuart's fourth, making the charge a felony. Stuart waived his right to a jury trial, and the bench trial was held on May 25, 2011. Following the State's conclusion of its case, Stuart moved for a direct verdict, which the district court denied. The district court found Stuart guilty of both charges.
On September 12, 2011, Stuart filed a motion for new trial, arguing that the district court violated his constitutional rights by not having him present when the district court issued the verdict in its memorandum opinion. The district court denied the motion and, based on the presentence investigation report showing this was Stuart's fourth DUI, sentenced him to 12 months' imprisonment. Stuart timely appeals.
Blood Test Evidence
Stuart argues that the district court erred in admitting the blood test from LMH into evidence. Accordingly, his argument is subject to a de novo standard of review because he is challenging the trial court's legal basis for admitting the evidence. See State v. Richmond, 289 Kan. 419, 426, 212 P.3d 165 (2009) (“ ‘When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.’ ”).
Stuart asserts, and the State blindly agrees, that this review involves a motion to suppress. Stuart never filed a motion to suppress. Stuart filed a “Motion to Seal Hospital Records and for a Finding that the State is Not Entitled to the Records Issued by the State Pursuant to a Business Subpoena.” The district court denied this motion, as well as Stuart's continued objections to the blood evidence during the bench trial. Even though Stuart did not appropriately argue the standard of review and failed to submit a motion to suppress, this court can consider his claim based on the multitude of objections he made during the trial. The contemporaneous objection rule requires each party to make a specific and timely objection at trial in order to preserve evidentiary issues for appeal. K.S.A. 60–404.
On appeal, Stuart argues that his blood was taken “improperly under the implied consent statute because it was performed as part of a medical evaluation ordered by the arresting officer, after [Stuart] had expressly refused to submit to a blood test.” Stuart points to the Kansas implied consent law to illustrate his point. K .S.A.2009 Supp. 8–1001 allows an officer to collect blood samples from a person suspected of DUI but also allows the person to refuse to submit to that testing.
Stuart suggests that Trooper Kellerman's intent in taking him to LMH was to circumvent the implied consent statute to test him against his will. That is simply not the case. Here, while en route to the Douglas County Jail, Stuart made several statements to Trooper Kellerman which Kellerman interpreted as suicidal ideations. One such statement Stuart made was that he “might as well commit suicide.” Because of the jail's policy regarding potentially suicidal subjects, Trooper Kellerman transported Stuart to LHM for a mental health screening.
Trooper Kellerman's concerns were legitimate and in no way intended to circumvent the law. The district court explained:
“He was taken [to LMH] not because, you know, because of the DUI. He was taken there because, and in fact the medical records themselves show that he admitted having said that he was suicidal, and I think the officer, you know, clearly did what he should have done under those circumstances, which was to take him to the hospital. It's not a situation where, where he would, it was a subterfuge to try to get around his refusal to take the breath test.”
Throughout the bench trial and in his motion to seal his hospital records, Stuart suggests this issue involves physician-client confidentiality, even though he does not focus on that argument on appeal.
A panel of this court considered this issue in State v. Weilert, 43 Kan.App.2d 403, 225 P.3d 767 (2010). In Weilert, the defendant was involved in a motorcycle crash, which led to an arrest for DUI. The trooper took Weilert to the hospital to treat minor injuries on his hands. At the hospital, the trooper asked Weilert to submit to a blood test. Weilert refused, but during the treatment for his injuries, a medical professional drew a blood sample for the purpose of providing treatment. This court held: “When a driver refuses consent for law-enforcement testing of breath or blood for alcohol but independently obtains a test for medical purposes, the State may introduce the independently obtained test into evidence in a prosecution for driving under the influence of alcohol.” 43 Kan.App.2d 403, Syl.
Stuart cites to two unpublished opinions, State v. Fritzemeier, 2007 WL 2080481 (Kan.App.2007), and State v. Befort, 2005 WL 81499 (Kan.App.2005), to support his position. Not only are the facts of both cases wholly distinguishable, but an unpublished opinion is not binding on this panel. See Supreme Court Rule 7.04(f)(2) (2011 Kan. Ct. R. Annot. 57). In Befort and Fritzemeier, each defendant's blood was taken without his consent and only for the purpose of testing it for alcohol levels. The court suppressed the blood evidence in both cases. Fritzemeier, 2007 WL 2080481, at *2;Befort, 2005 WL 81499, at *3.
Stuart relies on the Kansas Supreme Court case of State v. Adee, 241 Kan. 825, 740 P.2d 611 (1987), to argue that once a defendant refused to submit to testing pursuant to the Kansas implied consent statute, no further testing may be done. In Adee, the defendant was arrested for DUI, and after he refused to submit to a blood test, the district court issued a search warrant to retrieve his blood. On appeal, our Supreme Court suppressed the blood test. 241 Kan. at 833. Stuart's reliance on Adee, however, is misplaced because here Trooper Kellerman did not direct further testing. The testing done was solely for the purpose of Stuart's medical treatment at LMH.
The district court correctly determined that Trooper Kellerman acted appropriately under the circumstances by taking Stuart to LMH for psychological evaluation. Kellerman did not attempt to circumvent the implied consent requirement as Stuart suggests. Stuart's blood was tested specifically pursuant to LMH protocol and for medical purposes. The results of Stuart's blood test were properly admitted into evidence.
Sufficiency of Evidence
“ ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Under K.S.A.2009 Supp. 8–1567(a)(1), DUI is defined as operating a vehicle while “[t]he alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8–1013, and amendments thereto, is .08 or more.” The State met its burden during the bench trial.
Here, Trooper Shoemaker came upon Stuart's vehicle in the ditch and notified dispatch at 9:04 p.m. Trooper Shoemaker observed that Stuart had difficulty maintaining his balance and stumbled when trying to exit his truck. Trooper Kellerman arrived at the scene shortly thereafter and noticed that Stuart had a slight odor of alcohol, bloodshot eyes, slurred speech, trouble balancing, and Stuart admitted to consuming alcohol. Kellerman had Stuart perform two field sobriety tests, the walk-and-turn test and the one-leg stand test. Stuart failed to follow the instructions on both tests and could not maintain his balance. Kellerman arrested Stuart for DUI.
While en route to the Douglas County Jail, Stuart made many comments regarding his depressed state of mind and suicidal ideations. At the jail, Kellerman attempted to collect a breath sample but was unable to do so. Kellerman then took Stuart to LMH for mental evaluation based on his suicidal statements. Based on LMH protocol, hospital staff did a blood draw to determine if Stuart had too much alcohol in his system to conduct a mental health screening. Screening is not performed when one's BAC is above 200 milligrams per deciliter. The resulting blood test showed Stuart's BAC at approximately 12 a.m. was 210 milligrams of ethanol per deciliter.
Julinne Kemp, a forensic toxicologist for the KBI, testified as to the process of normal alcohol absorption and elimination. She explained that peak concentration typically occurs within 30–90 minutes after consumption. Alcohol is then eliminated from the body at a standard rate of .015 grams per deciliter per hour with a deviation of .01 to .02.
There is no contention that Stuart consumed any alcohol after 9:05 p.m. Stuart claims that there is no way to know what his BAC was at the time he was driving his truck. However, a reasonable factfinder, in this case the district court judge, could find that Stuart's BAC was over the legal limit of .08 when he was operating his vehicle. Stuart told Trooper Kellerman he had the last drink about 8:30 p.m., approximately 35 minutes before Kellerman arrived on the scene. This information, combined with the indicators of intoxication that Kellerman observed, could lead a reasonable factfinder to determine Stuart was intoxicated. Further, less than 3 hours later, when Stuart's BAC was likely waning, Stuart's BAC was still .210. There was sufficient evidence to convict Stuart of DUI.
Motion For a New Trial
“A claim that a defendant was deprived of his statutory and constitutional right to be present during a portion of his trial raises legal questions that are subject to unlimited review on appeal.” State v. Martinez, 288 Kan. 443, 449, 204 P.3d 601 (2009).
Stuart claims that the trial court erred by not granting him a new trial because its verdict was included in a memorandum decision and Stuart was not present when it was filed. Both sides concede that generally a defendant must be present for all proceedings, including sentencing. K.S.A. 22–3405. In pertinent part, K.S.A. 22–3405(1) states: “The defendant in a felony case shall be present ... at every stage of the trial including the ... return of the verdict.”
Here, following the presentation of evidence at a bench trial, the district court took the case under advisement and told the parties that they would not be called for further argument unless a question arose. Approximately 2 months later, on July 28, 2011, the trial court issued a memorandum decision informing the parties of its verdict. At the motions hearing on September 23, 2011, the district court explained that since Stuart was told the case was under advisement and that an opinion would be issued; no hearing was set to have the verdict read in Stuart's presence. During sentencing, however, the district court informed Stuart of his July 28 conviction.
Stuart suggests that the district court failed to comply with K.S .A. 22–3401 by not allowing him to be present for its verdict because under K.S.A. 22–3424(a), “the judgment shall be rendered and sentence imposed in open court.” Stuart correctly asserts that he did not waive his right to be present. Stuart argues:
“Instead of announcing its decision from the bench in open court, as required by statute, the court issued a document, dated and filed on July 28, 2011. That document contains the court's conclusions and findings with respect to the entire case. The last section of the document is entitled verdict.”
Stuart argues that the district court obviously did not follow procedure required by two statutes. Further, he did not waive his rights.
A panel of this court considered a similar issue in State v. Martin, No. 104, 465, 2012 WL 401605 (Kan.App.2012) (unpublished opinion). There, Martin was charged with perjury, and following a bench trial, the district court issued its decision in a three-page letter mailed to the parties. The district court then reaffirmed Martin's guilt during sentencing in open court. This court affirmed Martin's conviction, reasoning:
“Appearing for judgment is controlled by K.S.A. 22–3424. The statute provides that ‘judgment shall be rendered and sentence imposed in open court,’ K.S.A. 22–3424(a), but judgment shall be ‘rendered immediately’ only if the ‘verdict or finding is not guilty .’ K.S.A. 22–3424(b). ‘If the verdict or finding is guilty,’ the ‘judgment shall be rendered and sentence pronounced without unreasonable delay.’ K.S.A. 22–3424(c). In the present case, there is no contention that Martin's judgment and sentencing were unreasonably delayed.
“Thus, the trial court in the present case was under no obligation, imposed by the Kansas Code of Criminal Procedure, to hold a separate hearing to inform Martin of its finding of guilt. The statutes permit such an announcement to coincide with judgment and sentencing.” 2012 WL 401605, at *5.
Here, like in Martin, Stuart appeared at the motions hearing and then at sentencing, at which time the court reaffirmed Stuart's DUI conviction and sentenced him to “one year in the county jail, with post-release to follow with the Department of Corrections.” As the court explained in Martin:
“This was judgment and sentencing. See State v. Jackson, 262 Kan. 119, 140, 936 P.2d 761 (1997) (‘The judgment in a criminal case, whether it imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench. [Citation omitted.]’); State v. Van Winkle, 256 Kan. 890, 895, 889 P.2d 749 (1995) (The final judgment in a criminal case is the sentence.').” Martin, 2012 WL 401605, at * 5.
The court's memorandum decision issued before judgment and sentencing is considered “a courtesy afforded by the trial court.” Martin, 2012 WL 401605, at * 5. And while Stuart's constitutional rights were to be informed of the finding of guilt publicly and in person, he was clearly afforded those rights after receipt of the trial court's decision. Here, the district court informed Stuart of its finding of guilt in public and with him present. Under these particular circumstances, Stuart's conviction is affirmed.
Retroactive Application of K.S.A.2011 Supp. 8–1567(j)(3)
Interpretation of a statute is a question of law, and this court's review is unlimited. Accordingly, the appellate court is not bound by the lower courts' interpretations. See State v. Malmstrom, 291 Kan. 876, Syl. ¶ 1, 249 P.3d 1 (2011).
On appeal, Stuart argues that the 2011 change to the K.S.A. 8–1567 “look-back” provision should be applied retroactively. At the time Stuart committed his fourth lifetime DUI, the Kansas DUI statute contained a lifetime “look-back” provision; that is, any conviction occurring during a person's lifetime was taken into account when determining the sentence to be imposed for a second, third, fourth, or subsequent offender. K.S.A.2009 Supp. 8–1567(o)(3). The legislature amended the “look-back” provision in 2011 to provide that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A.2011 Supp. 8–1567(j)(3).
Recently, a panel of this court addressed this issue in State v.. Reese, No. 106,703, 2012 WL 3243993 (Kan.App.2012) (unpublished opinion). In Reese, the defendant incurred a fifth lifetime DUI conviction and argued that “because each of his four prior DUI convictions occurred before July 1, 2001, he should have been sentenced as a first-time offender under the amended statute that became effective before his sentencing.” 2012 WL 3243993, at * 2. Reese's argument and factual scenario are identical to Stuart's except this is only Stuart's fourth DUI.
Like the court explained in Reese, “[i]t is a fundamental rule of criminal procedure in Kansas that a defendant is sentenced based on the law in effect when the crime was committed.” 2012 WL 3243993, at * 2. Our Supreme Court has explained that “having the penalty parameters for an offense ‘fixed as of the date of the commission of the offense is fair, logical, and easy to apply.’ “ State v. Williams, 291 Kan. 554, 560, 244 P.3d 667(2010).
Moreover, there is no language in the legislation that would indicate an intent for retroactive application of this provision. Our Supreme Court explained:
“The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. [Citation omitted.] An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. [Citation omitted.]” Williams, 291 Kan. at 557.
Stuart argues that this statute is both procedural and remedial in nature and, therefore, should be applied retroactively. Our Supreme Court has found that a statutory amendment modifying the severity of punishment for a conviction alters substantive rights and therefore only operates prospectively. Williams, 291 Kan. at 557.
This court clearly found in Reese that K.S.A.2011 Supp. 8–15670(3) should not be applied retroactively. 2012 WL 3243993, at *3. Stuart's argument is without merit. The district court did not err in refusing to apply K.S.A.2011 Supp. 8–1567(j)(3) retroactively.
Affirmed.