Opinion
No. 107,636.
2013-05-17
STATE of Kansas, Appellee, v. Gerald V. WILSON, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge. KoreyA. Raul, of Kansas Appellate Defender Office, for appellant. Boyd R. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
KoreyA. Raul, of Kansas Appellate Defender Office, for appellant. Boyd R. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gerald V. Wilson contends he was denied a fair trial by the district court when the judge refused to allow him to recall a witness in surrebuttal. We view this question as a matter of discretion and conclude the court's denial was based upon a mistake of fact and therefore was an abuse of discretion. But we do not hold the error reversible because the exclusion of the surrebuttal testimony of the witness denying that she had told the police officer that she had drunk a Long Island Iced Tea and a beer did not influence the outcome of the trial, nor did the denial affect Wilson's substantial rights. Accordingly, we affirm the convictions. We do not address the question Wilson raises about the fine imposed in this case because it has been paid.
Two patrolling officers are forced to take evasive action.
Around 1 a.m. on October 1, 2010, Wichita Police Officers Anthony Klumpp and Michael Marks were southbound on Bleckley Street. As the officers started to round a curve in the road, they both observed a speeding oncoming car driving completely over the center line directly towards their patrol car. Both officers believed a collision was imminent.
Officer Klumpp, the driver of the patrol car, activated the emergency lights to draw attention to the patrol car and took evasive action to avoid a collision. After the vehicle passed them, Officer Klumpp turned the patrol car around and initiated pursuit. Both officers observed the suspect vehicle approach an intersection, fail to obey a stop sign, and then make a turn without using a turn signal. After making the turn at the intersection, the driver of the suspect vehicle appeared to lose control and the car came to an abrupt sliding stop at an angle alongside the curb. Officer Klumpp decided to make a traffic stop.
Officer Klumpp approached the driver's side of the vehicle and found Wilson sitting in the driver's seat. Officer Klumpp ordered Wilson out of the vehicle. As Wilson got out, Officer Klumpp noticed Wilson had bloodshot eyes and the odor of alcohol on his breath. Officer Klumpp immediately placed Wilson in handcuffs. In doing so, Officer Klumpp had to hold Wilson's arm to control his poor balance and swaying from side to side. Another officer who had arrived at the scene placed Wilson in the back of Officer Klumpp's patrol car while Officers Klumpp and Marks talked with the sole passenger and owner of the vehicle, Charity Richardson. When the officers asked Richardson if she had been drinking, Richardson responded, “[Y]es.” After the officers gave Richardson “the little eye test,” the officers allowed Richardson to drive away with her vehicle.
When Officer Marks asked Wilson to get out of the patrol car to perform field sobriety testing, Wilson responded, “[F]uck you, I'm not doing any of your tests, just take me down to the county.” Approximately 35 minutes after the traffic stop, Officer Marks asked Wilson to perform a breath test. Wilson refused.
The State charged Wilson with felony driving while under the influence of alcohol with three prior DUI convictions in violation of K.S.A.2010 Supp. 8–1567(a)(3)(g), failure to stop in violation of K.S.A. 8–1528, failure to signal when turning in violation of K.S .A. 8–1548, and operating a vehicle of the left half of the roadway in violation of K.S.A. 8–1514.
The case was tried to a jury. At trial, Officers Klumpp and Marks testified for the State, and Wilson presented testimony from Richardson. The jury acquitted Wilson of driving on the left half of the roadway and convicted him of the remaining three charges.
The court, after noting this was Wilson's fourth DUI conviction in Kansas, sentenced Wilson to 12 months' incarceration, less 5 days of jail credit. The district court imposed a $75 fine for each traffic infraction and a $2,500 fine for the DUI conviction without considering Wilson's ability to pay the mandatory DUI fine. Wilson timely appeals.
Wilson raises two issues in this appeal. He contends the court erred when it would not permit him to recall Richardson to rebut the testimony just given by Officer Klump. According to Wilson, this denial was an abuse of discretion because it was based on an error of fact. In his second issue, Wilson argues the court erred when it imposed the mandatory fine on him without first considering his ability to pay it.
The court's ruling was based upon the bad memory of the prosecutor.
Generally, rebuttal evidence is offered to contradict the evidence introduced by an opposing party. State v. Flournoy, 272 Kan. 784, 805, 36 P.3d 273 (2001). It is used to disprove testimony or facts asserted by the adverse party. State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987). As is true concerning the admission of all evidence, rebuttal evidence (and surrebuttal evidence) is admitted at the discretion of the trial court. We will reverse only if there is a clear abuse of discretion. State v. Davis, 237 Kan. 155, Syl. ¶ 2, 697 P.2d 1321 (1985).
According to the Supreme Court in Fischer v. State, 296 Kan. ––––, Syl. ¶ 8, 295 P.3d 560 (2013), judicial discretion is abused if the judicial action is:
• arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court;
• based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or
• 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.
Such errors of discretion are subject to the harmless error test. See State v. Ulate, 42 Kan.App.2d 971, 980, 219 P.3d 841 (2009), rev. denied 291 Kan. 917 (2010). In State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012), the Kansas Supreme Court clarified that the test is whether the error affected substantial rights. In other words, the question is whether the error affected the outcome of the trial. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution.
There is no constitutional question here. Accordingly, to declare a nonconstitutional error harmless this court must apply K.S .A.2010 Supp. 60–261 to determine if there was a reasonable probability that the error affected the outcome of the trial in light of the entire record. See Ward, 292 Kan. at 565. The State, as the party benefitting from the error, has the burden of proving harmlessness by that standard. State v. McCullough, 293 Kan. 970, 982–83, 270 P.3d 1142 (2012).
During the course of the cross-examination of Richardson, the following testimony about her conversation with Officer Klumpp occurred:
“Q. [PROSECUTOR]: Do you recall telling the officers that you had drank one Budweiser Beer at approximately 11:00 that night, the morning before this?
“A. [RICHARDSON]: Yes.
“Q. Which would have been about two hours before this took place?
“A. Yes.”
The State, during cross-examination, followed up on Richardson's testimony by asking the following questions:
“Q. [PROSECUTOR]: Now you told the officers [you] had one beer two hours ago; is that correct?
“A. [RICHARDSON]: I told him I had a beer.
“Q. That's what you say you told the officers?
“A. That's what I told him.”
After Richardson finished testifying, the State called Officer Klumpp as a rebuttal witness, to address, inter alia, the question of how much alcohol Richardson had told him she had drunk that evening. The following exchange took place:
“Q. [PROSECUTOR]: Did you ask her if she had consumed any alcohol?
“A. [OFFICER KLUMPP]: Yes, I did.
“Q. How did she respond?
“A. She drank one Budweiser beer at approximately eleven p.m. on the 31st of September.
....
“Q. Did she ever indicate anything about a Long Island Iced Tea?
“A. Not that I recall.”
Wilson then sought permission to call Richardson to give surrebuttal to Officer Klumpp's rebuttal testimony regarding, inter alia, his recollection how much alcohol Richardson had told him she had drunk. The State objected, arguing that Richardson could not present surrebuttal testimony to statements already introduced. The prosecutor recalled, “I asked her did you tell the officer that you had consumed one Bud Light at 11:00? I followed that up with that is two hours before this incident. Her response was, I also told him I had a Long Island Iced Tea. That's in the record, Judge.” Wilson proffered, through Richardson, that she had told Officer Klumpp she had drunk a Budweiser and a Long Island Iced Tea. The prosecutor, when asked, reiterated that Richardson had already testified about the Long Island Iced Tea. The district judge, relying on the prosecutor's recollection, denied Wilson's request for Richardson's surrebuttal testimony, ruling “I don't think there's anything that [Richardson] can testify to.”
The State concedes (1) the record does not support the prosecutor's specific recollection that Richardson had previously testified to drinking a Long Island Iced Tea, and (2) the district court “relied upon the State's recollection in denying defendant's request for surrebuttal.” The trial transcript clearly indicates Richardson never testified at any time to having told Officer Klumpp she had drank a Long Island Iced Tea that evening. In other words, contrary to the prosecutor's assertions to the district court, Wilson was not attempting to introduce cumulative testimony. Accordingly, substantial competent evidence did not support the district court's exercise of discretion in denying Wilson's request to give surrebuttal. See Fischer, 296 Kan.––––, Syl. ¶ 8.
We turn now to the question of harmlessness.
Basically, Wilson argues Richardson's surrebuttal could have in some way influenced the jury's view of the officer's recollections regarding Wilson's own level of intoxication. After all, Richardson's testimony contradicted nearly all of the officers' testimony. Richardson testified Wilson was in better shape to drive the car than she was and displayed no physical signs of intoxication. He was driving her car normally, never drove on the wrong side of the road, nor did he run a stop sign. He had simply pulled over to the curb and stopped when he noticed the police.
In raising this argument, Wilson fails to acknowledge that the jury only heard Officer Klumpp corroborate Richardson's own previous testimony that she had told the officers she had consumed just one beer that evening. While the prosecutor's line of questioning during rebuttal regarding the Long Island Iced Tea was clearly superfluous, Officer Klumpp's testimony did not contradict any existing evidence introduced by Wilson or introduce any testimony or facts where surrebuttal would be proper. See Flournoy, 272 Kan. at 805;Willis, 240 Kan. at 583. In fact, Richardson's surrebuttal would have only highlighted the contradiction between her own testimony first introduced by Wilson during direct examination and any new testimony to the contrary during surrebuttal. Given that the jury had already taken into account Richardson's testimony, there was no reasonable probability that the exclusion of Richardson's surrebuttal contradicting her own prior testimony affected Wilson's substantial rights and would have influenced the outcome of the trial. See Ward, 292 Kan. at 565. Such testimony did not concern any material evidence relevant to Wilson's defense and was immaterial to the disposition of the case.
We see no reason to reverse on these grounds.
The question about the imposition of the fine is moot.
The district court's ledger attached to the State's brief indicates Wilson has already paid the fine. Thus, any decision this court would render on the method of payment is clearly moot. See State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009), where the court held that when a controversy no longer exists, any judgment of the court would be ineffective. We do not have the authority to decide moot questions nor render advisory opinions. State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012). Accordingly, this portion of Wilson's appeal is dismissed.
Affirmed in part and dismissed in part.