Opinion
No. 106,493.
2013-01-18
CITY OF CONCORDIA, Kansas, Appellee, v. Chad J. LOWELL, Appellant.
Appeal from Cloud District Court; Kim W. Cudney, Judge. Kenneth B. Miller, of Rork Law Office, of Topeka, for appellant. Jennifer L. Wickersham, City Prosecutor, and Derek Schmidt, attorney general, for appellee.
Appeal from Cloud District Court; Kim W. Cudney, Judge.
Kenneth B. Miller, of Rork Law Office, of Topeka, for appellant. Jennifer L. Wickersham, City Prosecutor, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Chad J. Lowell appeals his misdemeanor conviction for driving under the influence (DUI) of alcohol (second conviction) in violation of a municipal ordinance. Trial was to the district court after Lowell appealed his initial municipal court conviction. We reverse and remand for a new trial because the district court did not advise Lowell of his right to a jury trial before Lowell waived that right.
Factual and Procedural Background
On March 5, 2010, at about 2 a.m., Kenneth Davis, a police officer for the City of Concordia, entered a convenience store to purchase some items. He observed one other car parked outside the store. While in the store, Officer Davis heard a “commotion” between Lowell and the cashier. The officer heard the cashier say: “ ‘Don't accuse me of calling the cops.’ “ As the officer approached, he smelled “a strong odor of alcohol ... permeating from [Lowell] for about eight feet.” The officer further “observed bloodshot eyes, slurred speech, that [Lowell] was in an aggravated state, swaying on his feet, and uncoordinated.”
According to Officer Davis, Lowell was repeating a story about an incident that occurred to him in basic training wherein he was attacked “because he was gay.” The officer asked Lowell if he had driven to the store, and Lowell said he had walked. Observing no crime being committed, Officer Davis left the store.
Suspecting that Lowell had driven the car parked outside, Officer Davis drove across the street to surveil the store. Within a few minutes, Lowell left the store, entered the parked car and began to drive away. Officer Davis stopped Lowell before he pulled onto the street.
Lowell still appeared intoxicated. He admitted to drinking “a lot” of alcohol and told Officer Davis the stop was “bogus” because it was made on private property. Officer Davis asked Lowell to perform field sobriety tests, but he refused. Lowell was arrested and taken to the Sheriff's Department for a breath test, which he also refused. At the bench trial, Officer Davis testified to an opinion based on his training and experience that Lowell was too intoxicated to safely drive a vehicle.
Lowell moved to suppress the incriminating evidence of his intoxication, but in a combined suppression hearing/trial the trial court ruled “there was reasonable suspicion to stop the vehicle, and probable cause to make the arrest.” The trial court found Lowell guilty of DUI based on “proof beyond a reasonable doubt that [Lowell] was driving under the influence of alcohol, and that it would have been a ridiculous thing for the officers to allow ... a person in this condition, to continue to drive until he caused harm to another individual.” Lowell was convicted of DUI. He was sentenced to 12 months in jail, fined, and granted 12 months' probation.
Waiver of Jury Trial
For the first time on appeal, Lowell contends he did not “effectively” waive his right to a jury trial in the district court.
Following his sentencing in the municipal court, Lowell and his counsel filed a notice of appeal and a “Demand for Jury Trial.” The district court scheduled the arraignment, where Lowell again appeared with counsel. After arraignment the district trial court asked: “And are you seeking to have a jury trial in this matter?” Lowell's counsel answered: “We are, Your Honor, and we do anticipate motions prior to the trial.” The district court set a deadline for the filing of motions, a date for the hearing on the motions, and a date for the jury trial itself. The district court and counsel next discussed the number of jurors to be summoned and the anticipated jury instructions.
Subsequently, Lowell's counsel filed a motion to suppress evidence. The City did not file a timely response, however, and the hearing on the motion was continued. Lowell then filed a written “Waiver of Jury Trial.” The pleading read:
“COMES NOW the Defendant Chad J. Lowell and waives his right to a Jury Trial in the above matter and would request that this matter scheduled for February 28, 2011 at 9:00 a.m. be scheduled for a Bench Trial instead.
“That the Defendant, Chad J. Lowell, hereby acknowledges that he has a right to a trial by a jury of his peers and hereby waives said right.”
Lowell signed his name below this statement, and below his signature was a further statement: “Chad J. Lowell, of lawful age, being first duly sworn upon his oath, states: that he is the Defendant in the foregoing cause of action; that he has read the above Waiver of Jury Trial, knows the contents therein, and that the facts and statements therein contained are true.” Lowell signed his name again, and this signature was notarized.
On February 28, 2011, Lowell appeared with his counsel for what the trial court called “a bench trial ... along with a motion to suppress.” Lowell offered no objection to this procedure. As noted earlier, the trial court denied the motion to suppress and found Lowell guilty of DUI.
After trial, Lowell's counsel filed a “Motion for Judgment of Acquittal,” which essentially asked the trial court to reconsider its guilty verdict. In the pleading, Lowell's counsel did not suggest that his client desired a jury trial instead of a bench trial. At the hearing on the motion, the trial judge recited some of its findings and stated:
“This Court found, based upon all the evidence presented at trial, that ... there was evidence beyond a reasonable doubt that [Lowell] had operated or attempted to operate a vehicle while under the influence of alcohol to a degree that rendered him incapable of safely operating the vehicle.
“I find nothing presented today to persuade the Court otherwise, and the Court's ruling stands.
“The motion for judgment of acquittal is denied.”
Neither Lowell nor his counsel objected to this reconsideration of the facts, nor did they suggest that Lowell had been improperly convicted by the court rather than a jury.
For the first time on appeal, however, Lowell now contends that “he did not effectively waive” his right to a jury trial. Waiver of a jury trial is generally a factual question reviewed for substantial competent evidence, but where the facts are undisputed our review is de novo. State v. Barnes, 293 Kan. 240, 260, 262 P.3d 297 (2011). Given the undisputed facts in the present case, our review is de novo.
Aside from providing the appropriate standard of review and the general law of waiver, Lowell's argument consists of a brief description of the relevant facts, a quote from State v. Johnson, 46 Kan.App.2d 387, 264 P.3d 1018 (2011), rev. denied 294 Kan. –––– (2012), and the following:
“Nowhere in the written waiver does it state the court advised him of his right to a jury trial. Likewise, it appears from the record that the [trial] court never personally, or otherwise, advised Lowell of this right to a jury trial. Therefore, pursuant to Johnson, and the cases cited therein, the case should be remanded for a new trial.”
“[T]he test for determining the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily made by a defendant who knew and understood what he was doing.” State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975); see also State v. Beaman, 295 Kan. 853, 286 P.3d 876, 882 (2012) (citing Irving ). As the quote from Lowell's brief shows, he does not argue this test or otherwise deny that his waiver was voluntary and knowing. Instead, Lowell contends that his waiver was not “effective.”
We may address the effectiveness of the waiver for the first time on appeal to prevent denial of a fundamental right. See Beaman, 295 Kan. 853, Syl. ¶ 1;Johnson, 46 Kan.App.2d at 397.
In Irving our Supreme Court adopted as “an additional safeguard” a procedural requirement that prior to a waiver of jury trial, “the defendant must first be advised by the court of his right to a jury trial.” 216 Kan. at 590. This advice is required “to effectively” waive the constitutional right to a jury trial. 216 Kan. at 590. In the “absence of an effective waiver,” the remedy is a new trial. 216 Kan. at 590.
Lowell relies upon Johnson, where this court treated the absence of an effective waiver as “structural error.” 46 Kan.App.2d 387, Syl. ¶ 9. As in the present case, it appears the defendant in Johnson actually knew of his right to a jury trial. 46 Kan.App.2d at 399 (stipulation by defendant that he was advised by counsel of his right to jury trial). But because the record did not show “the district court advised [defendant] of his jury trial rights,” this court treated the issue as a fundamental right meriting consideration for the first time on appeal. 46 Kan.App.2d at 397–98, 400.
Lowell also cites State v. Frye, 294 Kan. 364, 277 P.3d 1091 (2012), wherein our Supreme Court considered a similar issue for the first time on appeal. In Frye, there was an undated written waiver, but our Supreme Court emphasized the so-called, “ Irving hurdle,” which “requires that the written waiver be after the defendant is ‘advised by the court of his right to a jury trial.’ [Citation omitted.]” 294 Kan. at 373. Because “the district court did not comply with the 37–year–old Irving requirement to accept a valid waiver of defendant's right to a trial by jury,” the “bench trial verdict must be reversed and the matter remanded to afford [defendant] his constitutional right to a trial by jury or to effect a valid waiver of the same.” 294 Kan. at 374.
Frye was different from Johnson, and more like Irving, because in both of our Supreme Court's cases the fact of a valid waiver was unclear. See Frye, 294 Kan. at 372–73;Irving, 216 Kan. at 590. Where the validity of waiver is unclear, the constitutional issue is much more in play than in Johnson, where the waiver was apparently valid from a constitutional viewpoint.
Indeed, we note that (unlike Kansas) some courts have distinguished between constitutional and procedural violations:
“As noted recently by the Pennsylvania Supreme Court, a requirement of an oral colloquy related to a jury-trial waiver is a procedural device, not a constitutional end or a constitutional ‘right.’ Commonwealth v. Mallory, 941 A.2d 686, 697 (Pa.2008). The absence of an oral colloquy or a written waiver does not necessarily prove that a defendant failed to understand the nature of the right waived by proceeding to a non-jury trial. Id. For example, a lawyer who is accused of a crime or a career criminal might have considerable first-hand knowledge of the right to a jury trial. Id.” State v. Feregrino, 756 N.W.2d 700, 707–08 (Iowa 2008).
By recognizing the distinction between constitutional and procedural violations, these other courts may treat the violations differently on review. See Feregrino, 756 N.W.2d at 708 (“If as a matter of fact the waiver was knowing and voluntarily given, no infringement of a constitutional right or structural defect is present.”); Boulden v. State, 414 Md. 284, 307–08, 995 A.2d 268 (2010) (violation of procedural rules regarding timing of jury trial waiver is subject to harmless-error analysis).
The language in Irving, however, does not distinguish between constitutional invalidity and procedural ineffectiveness, as the ruling in Johnson shows. Under our reading of Kansas caselaw, both types of violations are treated as reversible error. Following this precedent, we are required to reverse the conviction and remand to provide Lowell an opportunity to waive his constitutional right to a jury trial after the trial court has advised him of that right.
Suppression of the Evidence
Lowell contends the incriminating evidence of his intoxication should have been suppressed because Officer Davis had neither reasonable suspicion to stop his car nor probable cause to arrest him for DUI.
We review these issues using a bifurcated standard. “Without reweighing the evidence, the appellate court reviews the district court's findings to determine whether they are supported by substantial competent evidence. The appellate court then reviews the ultimate legal conclusion regarding the suppression of evidence using a de novo standard. [Citation omitted.]” State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
A traffic stop is a seizure requiring reasonable suspicion “based on articulable facts that a crime has been, is being, or is about to be committed. [Citation omitted.]” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 636, 176 P.3d 938 (2008). “The court makes its determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, remembering that reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence.” State v. Johnson, 293 Kan. 1, Syl. ¶ 4, 259 P.3d 719 (2011).
Lowell was charged under a Concordia ordinance adopting the Standard Traffic Ordinance for Kansas. The ordinance at issue here provided: “No person shall operate or attempt to operate any vehicle within this city while ... [u]nder the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle.” Standard Traffic Ordinance for Kansas Cities (2009 ed.), Art. 6, Sec. 30(a)(3). The language of this ordinance is very similar to the state's DUI statute. See K.S.A. 8–1567(a)(3).
Lowell's counsel conceded in closing arguments that Lowell had operated “his vehicle within the city limits.” The critical issue was, therefore, whether Lowell was intoxicated such that he could not safely drive his vehicle. Based on our review of the record, Officer Davis had observed and spoken with Lowell in the convenience store and formed a reasonable suspicion that Lowell was incapable of safely driving a vehicle. Lowell strongly smelled of alcohol, was acting erratically, had slurred speech, had bloodshot eyes, and exhibited unsteady or uncoordinated movements. These are well-recognized signs of intoxication. See, e.g., State v. Adame, 45 Kan.App.2d 1124, 1126–27, 257 P.3d 1266,rev. denied 293 Kan. –––– (2011); State v. Bussart–Savaloja, 40 Kan.App.2d 916, 919, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009); State v. Wahweotten, 36 Kan.App.2d 568, 591, 143 P.3d 58 (2006)rev. denied 283 Kan. 933 (2007); State v. Huff, 33 Kan.App.2d 942, 945–46, 111 P.3d 659 (2005).
Lowell counters this incriminating testimony by highlighting other details, including the fact that he was not observed driving erratically. But we do not reweigh the evidence or pass on the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Moreover, “[o]bserved erratic driving is not a requirement for conviction of driving while under the influence of alcohol.” State v. Duncan, 44 Kan.App.2d 1029, Syl. ¶ 2, 242 P.3d 1271 (2010).
With respect to Lowell's arrest without warrant, Officer Davis needed “probable cause to believe” that Lowell had committed “a misdemeanor,” and probable cause to believe further that Lowell either would “not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested,” or that Lowell might “cause injury to self or others or damage to property unless immediately arrested.” K.S.A. 22–2401(c)(1)–(2)(A). Probable cause to arrest is that quantum of evidence that would lead a reasonably prudent law enforcement officer to believe that guilt is more than a mere possibility but less than that sufficient to prove guilt beyond a reasonable doubt. State v. Pollman, 41 Kan. 20, Syl. ¶ 4, 204 P.3d 630 (2008).
We believe Officer Davis' observations inside the store alone would have supported probable cause to arrest Lowell once he began driving. Officer Davis, however, had also learned that Lowell lied to him about driving, thereby showing a consciousness of guilt. Lowell then admitted he had drunk “a lot” of alcohol, and he refused the field sobriety tests, which was further evidence supporting probable cause. See Huff, 33 Kan.App.2d at 946. We conclude the court properly denied the motion to suppress.
Sufficiency of the Evidence
For his last issue, Lowell contends the evidence was insufficient to convict him of DUI.
“ ‘ “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.” [Citation omitted.]’ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
In support of his contention, Lowell offers explanations for his refusal to submit to the breath alcohol test and for his behavior generally. Once again, we do not reweigh the evidence or pass on the credibility of witnesses. Hall, 292 Kan. at 859. The trial court noted that Lowell had refused the breath test and by statute the refusal was admissible against him. See K.S.A.2011 Supp. 8–1001(n); Duncan, 44 Kan.App.2d at 1035. The weight given Lowell's refusal was a matter for the trial judge, who apparently disbelieved Lowell on other matters.
We can say the same for Lowell's behavior generally. The trial court was in a better position to observe Lowell and decide whether his earlier behavior was more attributable to alcohol or to the causes Lowell suggested a trial, such as mental or emotional problems. Other evidence supported the trial court's conclusion as well. Lowell, for example, testified he smelled of alcohol because his uncle had spilled beer on him, but Devin Anderson, a police officer for the City, testified that as he transported Lowell the odor of alcohol “was stronger when he was talking, so it would be out of his mouth.” Viewing all the evidence in the light most favorable to the prosecution, a rational factfinder could have found beyond a reasonable doubt that Lowell was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle.
Reversed and remanded for a new trial.