Opinion
No. 108,686.
2013-10-11
STATE of Kansas, Appellee, v. Brandon BOLEN, Appellant.
Appeal from Sherman District Court; Glenn D. Schiffner, Judge. Caleb Boone, of Hays, for appellant. Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sherman District Court; Glenn D. Schiffner, Judge.
Caleb Boone, of Hays, for appellant. Charles F. Moser, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this direct appeal of his felony conviction of driving under the influence of alcohol or drugs, Brandon Bolen contends that when the prosecutor said a defense witness' testimony that Bolen had passed all the field sobriety tests was “speculation,” he made an improper comment that calls for a new trial. Because the prosecutor's comment was not outside the wide latitude the law allows, we hold there is no reversible error in this case and affirm the conviction.
Bolen is field tested in a parking lot.
At approximately 11:30 p.m. on June 4, 2011, Sherman County Deputies Jason Showalter and Asa Stiles stopped a car driven by Bolen after they saw Bolen fail to stop at a stop sign before pulling into the Presto Convenience Store parking lot. A dashboard camera in the deputies' vehicle recorded all of the events.
During the traffic stop, Deputy Stiles smelled a strong odor of alcohol. Bolen admitted having had two to three beers that night. Deputy Stiles asked Bolen to perform four field sobriety tests. Deputy Stiles concluded and later testified that Bolen (1) failed the walk-and-turn test; (2) passed the one-leg-stand test but exhibited other indicators of intoxication during the test; (3) failed the first of two alphabet tests; and (4) passed the finger-counting test.
Following the field sobriety testing, Deputy Stiles searched Bolen's vehicle and found a 20–pack of beer containing only 19 bottles. Deputy Stiles found the missing beer bottle on the floorboard behind the driver's seat. It was open and had partially spilled on some papers that were still wet. At that point, Deputy Stiles arrested Bolen for suspicion of driving under the influence. At the police station, Bolen agreed to submit to a breath test. The Intoxilyzer 8000 measured Bolen's blood alcohol content at 0.129.
At the trial, Carol Aaron, a Presto Convenience Store employee, testified for the defense. She watched Bolen perform the field sobriety tests while she was standing outside the store on her break. She told the jury that Bolen had “absolutely” passed all of the field sobriety tests. During closing arguments, the prosecutor commented that Aaron's testimony about Bolen passing the tests “was speculation.” Despite Aaron's testimony, the jury found Bolen guilty of driving under the influence and transporting an open container of alcohol.
Bolen argues that the prosecutor improperly vouched for Deputy Stiles' credibility when he commented on Aaron's thought process by stating, “Her testimony was speculation.” The State counters by arguing that the prosecutor's comment was within the wide latitude afforded a prosecutor to explain how to assess witness credibility and to make arguments that draw reasonable inferences from the evidence.
We use a two-step process to evaluate questions such as this.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we decide whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If so, then we must then determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The comment was not improper.
The context is important in understanding the meaning of a statement by a prosecutor. Bolen's trial strategy was to rely on Aaron's testimony to argue that the evidence showed Bolen was not intoxicated when Deputy Stiles made contact with him. Aaron testified that Bolen “absolutely” passed all of the field sobriety tests and that she heard one of the deputies declare at the end of testing, “[H]e passed the test.” Aaron could not identify which deputy allegedly said this. During cross-examination, however, Aaron conceded that what she may have heard the deputy say was that Bolen passed one test, not all the tests. And Aaron admitted she had no law enforcement training and no training in either field sobriety testing or recognizing clues for impairment.
During the closing argument, defense counsel emphasized Aaron's testimony, stating, “Her testimony is the application of common sense to what she saw. She saw him perform the tests satisfactorily. She saw him pass the tests satisfactorily.” (Emphasis added.) The defense continued: “As an impartial observer, [Aaron] reported to us what she saw under oath. And she said that he passed the test, that he was acting appropriately. That he was in control of his faculties.”
In response, the prosecutor stated:
“Lastly, Mrs. Aaron's testimony; she got up here, and told you yes, I saw him take these tests. He did them fine. He passed them all.
“What was her training? She has no training to observe these tests and determine who passes and who fails, and what's scoreable and what's not. She observed him and maybe he could complete them, that doesn't mean you pass them, or there's no indicators of intoxication.
“... I don't think—yes, you have to weigh everyone's testimony. But you are allowed to assign the weight of each person's testimony and make your decision based on that. Mrs. Aaron admittedly had no training in DUI investigations, or detection. Her testimony was speculation. I saw. I observed him do them. He did them.
“Now, you heard from the officer who eye-witnessed this.... These are the observation[s] of the person trained and educated in how to detect alcohol violations.” (Emphasis added.)
The two cases Bolen cites offer little help for his position as they actually hold differently than what Bolen argues. Bolen relies upon State v. Floumoy, 272 Kan. 784, 797, 36 P.3d 273 (2001) and State v. Haugland, No. 105,218, 2012 WL 1450440, at *4 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. –––– (2013), for support. In Flournoy, the Supreme Court ruled that it was improper for a prosecutor to refer to the imaginary final thoughts of a victim just before she was shot, because the comments were outside the scope of the evidence presented. 272 Kan. at 796–97. Then, in Haugland, a panel of this court held that “[u]nless there is specific evidence on the point, what one of the parties involved in the events mentioned in evidence was thinking is generally outside the evidence and not a proper subject for closing argument.” 2012 WL 1450440, at *4. The comment is prohibited if it is unsupported by the evidence. In fact, such comments are permitted if they are within the scope of evidence presented or draw reasonable inferences from the evidence. See State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011).
In context, the prosecutor's comment was neither questioning what Aaron must have been thinking when she observed Bolen do the field sobriety tests nor vouching for Deputy Stiles' credibility. The prosecutor did not express a direct opinion about the truth of Aaron's testimony. Instead, the prosecutor was making an argument that Aaron was not a credible witness as to whether Bolen had indeed passed the field sobriety tests by asking the jury to draw the reasonable inference from the evidence presented regarding Aaron's lack of qualifications to make such a determination. The Kansas Supreme Court has repeatedly determined such inferences permissible. See, e.g., State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011). In Chanthaseng, the court found a prosecutor's statements about the witness' credibility when accompanied by a discussion of evidence presented at trial is merely asking the jury to draw permissible inferences from the evidence. In Duong, 292 Kan. at 830–32, the court held that the prosecutor's statements about the victim's credibility were not prosecutorial misconduct because the prosecutor drew reasonable inferences based on the evidence and was just directing the jury to specific testimony. In State v. Scott, 286 Kan. 54, 82–83, 183 P.3d 801 (2008), the court found that a prosecutor's statement did not constitute “vouching” because the prosecutor's argument regarding credibility of a witness was based upon the evidence or content of that witness' trial testimony.
We need not proceed to the second step of the Burnett misconduct analysis, because the comment by the prosecutor was not outside the wide latitude for comment afforded by the law.
Affirmed.