Opinion
No. 105,637.
2012-06-29
STATE of Kansas, Appellee, v. Bryce A. GOULD, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Bryce A. Gould appeals his conviction for felony driving under the influence in violation of K.S.A.2008 Supp. 8–1567 following a jury trial in Sedgwick County District Court. He asserts half a dozen errors. Apart from a sentencing mistake pertaining to the mandatory fine for the DUI conviction, we affirm.
The facts may be stated briefly. Wichita Police Officer Keith Cox received a call from the department's dispatcher about 2:30 a.m. on May 23, 2009. Officer Cox testified at trial that the dispatcher informed him a resident had called in complaining that a vehicle had been parked in the street for about half an hour and its headlights were shining into the caller's home. Officer Cox got to the location about 15 minutes later. He saw a pickup truck in the middle of the residential street with its headlights on and the engine running. Officer Cox went up to the truck and found Gould asleep or passed out in the driver's seat. Officer Cox turned off the engine. After doing so, he attempted to rouse Gould, initially without much success. Finally, Gould responded.
Officer Cox noted that Gould's eyes were bloodshot and watery. He smelled alcohol on Gould's breath. When Officer Cox asked Gould if he had been drinking, Gould replied he had drunk a lot. Gould then agreed to perform two field sobriety tests and failed both. Gould also said he would take a breath test. Officer Tim Noone conducted the breath test at the scene at 3:32 a.m. According to the test results, Gould's blood-alcohol level at that time was .161.
Gould testified in his own defense at trial. He said he had been with a woman named Amy, who he had known briefly. Gould testified that he had been drinking, but Amy had driven the pickup truck to that location and parked it there. According to Gould, Amy then walked to her residence several blocks away, where she lived with her ex-fiance. Amy did not testify.
At trial, the State proceeded under K.S.A.2008 Supp. 8–1567(a)(2) criminalizing, at that time, the operation or an attempt to operate a vehicle when the driver has a blood-alcohol level of .080 or more as measured within 2 hours of the operation or the attempt. The jury convicted Gould. At sentencing, the district court imposed a period of 12 months' imprisonment and placed Gould on probation for 12 months, subject to the mandatory period of incarceration and other restrictions required under K.S.A.2008 Supp. 8–1567. The district court also fined Gould $1,500.
Gould timely appealed to this court. We take up the issues generally as Gould presents them and provide additional facts as necessary.
First, Gould contends the State produced no evidence showing the breath test was administered within 2 hours of the time he operated or attempted to operate the pickup truck. In framing the issue, Gould correctly recognizes the jury, in convicting him, necessarily rejected his story about Amy doing the driving—a factual finding this court must accept in reviewing the case on appeal. See State v. Trautloff, 289 Kan. 793, 800–01, 217 P.3d 15 (2009); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). Even so, his argument is unavailing.
Officer Cox testified that the dispatcher told him that the citizen complainant reported that the pickup had been in the street with its lights on for about 30 minutes. Officer Cox received that call around 2:30 a.m., meaning the citizen first saw the pickup at roughly 2 a.m. The evidence shows Gould took the breath test just after 3:30 a.m., well within the 2–hour window required under K.S.A.2008 Supp. 8–1567. Taking that evidence in a light most favorable to the State, as the party prevailing at trial, we find adequate support for the jury's verdict. We may properly infer the jury found that the reporting citizen became aware of the pickup at about the time Gould parked it in the street. See State v. Hill, 33 Kan.App.2d 907, Syl. ¶ 2, 111 P.3d 178,rev. denied 280 Kan. 987 (2005).
The statements of both the dispatcher and the citizen were hearsay and almost certainly inadmissible on that basis. But Gould interposed no objection at trial and, therefore, has waived any challenge to their admission or the jury's consideration of them. See State v. King, 288 Kan. 333, Syl. ¶ 5, 204 P.3d 585 (2009). We recognize law enforcement personnel are generally permitted to testify about dispatch calls or similar communication to explain their presence at a particular location or their course of conduct at a given time. In those instances, the fact of the communication may be received not for the truth of the matters asserted in it but simply to show why the officers did what they did. See State v. Araujo, 285 Kan. 214, 220, 169 P.3d 1123 (2007). The testimony would be properly objectionable as substantive evidence proving the truth of the content of the communication. As a matter of trial strategy, a defense counsel often forgoes any objection because the content of the communication has no independent significance in a given case. Here, that was not true. But the absence of any objection at trial both allowed the jury to consider the content of the communication as substantive evidence and precludes this court from considering a claimed error predicated on its admission. That evidence showed that Gould operated or attempted to operate the pickup within 2 hours of the breath test.
Gould next repackages much the same argument and contends the State failed to present evidence to show that he actually operated the pickup as opposed to making an attempt to do so in the 2 hours before the breath test was administered to him. Gould casts the argument as one based on alternative means of committing a DUI. That is, a driver may be guilty of the offense whether he or she operates a vehicle or merely attempts to operate a vehicle under the proscribed conditions, here having a blood-alcohol level of .080 or more within 2 hours. See State v. Stevens, 285 Kan. 307, 316, 172 P.3d 570 (2007) (operating and attempting to operate present alternative means of committing the offense of DUI).
If a jury has been instructed on alternative means, each juror must be convinced beyond a reasonable doubt the defendant committed the offense. But the jurors need not agree on which of the alternative means has been proven. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). A general verdict of conviction is legally proper so long as the record contains sufficient evidence to support each means. Wright, 290 Kan. 194, Syl. ¶ 2;Stevens, 285 Kan. at 316. As we explained, based on the evidence admitted at trial without objection, a jury could reasonably conclude Gould drove the pickup truck onto the residential street and then passed out about 2 a.m. Again, as we have noted, that shows the breath test was administered within the required statutory timeframe and renders the proof of each element of the offense legally sufficient to support the conviction.
We do not understand Gould to be arguing that the evidence fails to demonstrate an attempt to operate the pickup. If he were, the reasoning of State v. Perkins, 46 Kan.App.2d 121, 127, 257 P.3d 1283 (2011), rev. granted 293 Kan. –––– (December 19, 2011), supports the conclusion that Gould also attempted to operate a vehicle within the meaning of K.S.A. 8–1567. The panel in Perkins concluded that operating a vehicle within the meaning of 8–1567 necessarily encompasses an attempt, given the statutory language and the purpose of the statute in proscribing and punishing a broad range of conduct related to driving a vehicle under the influence of drugs or alcohol. Because the Kansas Supreme Court has granted review in Perkins, we cannot rely on that decision as precedent in reaching our conclusion. Supreme Court Rule 8.03(i) (2011 Kan. Ct. R. Annot. 69). We have, however, independently examined the reasoning of Perkins on this point and find it sensible and persuasive. We, therefore, come to the same conclusion. To the extent Gould is arguing insufficient evidence supported the alternative means of attempting to drive, we find the argument unavailing. The evidence adequately established that he operated the pickup truck and, therefore, necessarily must have attempted to do so.
Next, Gould asserts the State improperly relied on his decision to remain silent after being advised of his Miranda rights to induce the jury to convict him. On cross-examination, Officer Noone answered a question about whether Gould had mentioned someone else driving the pickup truck. He answered in the negative and then began explaining that he believed, “Officer Cox read [Gould] Miranda, he invoked, and that's as far as....” Officer Noone got no further into his answer when Gould's lawyer objected. The district court sustained the objection and instructed the jury to disregard Officer Noone's response. After Officer Noone completed his testimony, Gould's lawyer moved for a mistrial based on the reference in the partial answer to Gould's relying on Miranda. The district court denied the motion.
The Kansas Supreme Court has held that the State violates a defendant's constitutional rights by eliciting testimony that the defendant has invoked his or her right to remain silent after being advised that he or she need not answer questions. State v. Drayton, 285 Kan. 689, 707, 175 P.3d 861 (2008). Officer Noone's testimony appears to have violated that rule, but the violation was not a matter of prosecutorial misconduct. The information came out in a gratuitous response to a question from defense counsel. The district court immediately took appropriate curative steps upon defense counsel's objection but declined to grant a mistrial.
Under K.S.A. 22–3423(l)(c), the district court may grant a mistrial if necessary because “[p]rejudicial conduct ... makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” The improper conduct must deprive the defendant of a fair trial. See State v. McReynolds, 288 Kan. 318, Syl. ¶ 11, 202 P.3d 658 (2009). In short, a defendant has to demonstrate “substantial prejudice” to warrant what amounts to the extreme remedy of a new trial. State v. Daniels, 278 Kan. 53, 66–67, 91 P.3d 1147,cert. denied543 U.S. 982 (2004).
A trial court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A trial court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208[2007] ). Finally, a trial court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3,256 P.3d 801 (2011) (outlining all three bases for an abuse of discretion).
Nothing suggests the district court misapplied the standards for granting a mistrial. We comfortably conclude that other district courts would have denied the motion for a mistrial based on the limited statement Officer Noone made in response to a question posed to him on cross-examination. Thus, we find no abuse of discretion. The district court's decision to sustain the objection and then to instruct the jury to disregard the testimony was sufficient to preserve Gould's right to a fair trial.
Gould attempts to jumpstart this argument in two additional ways. First, he says the district court did not appreciate that it could grant a mistrial if it wanted to. We read the record to indicate the district court saw no need to do so in light of the curative steps it did take. To the extent the trial record might be viewed as ambiguous, the discussion at the hearing on posttrial motions was not. Gould raised the failure to grant the mistrial in his posttrial filings as a basis to set aside the verdict. In ruling on that request, the district court made clear that it had the legal authority to grant a mistrial but the remedy was unnecessary because the objection had been sustained and the jury admonished to regard Officer Noone's testimony.
Second, Gould contends the prosecutor referred to his postarrest silence during closing argument, thereby violating his constitutional rights as recognized in Doyle v. Ohio, 426 U.S. 610, 617–19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A Doyle violation occurs when the government attempts to impeach a defendant's version of events offered at trial on the basis that the defendant remained silent after being advised of his or her Miranda rights and, thus, did not offer the information at an early point in the criminal investigation. 426 U.S. at 617–19; see State v. Kemble, 291 Kan. 109, 122, 238 P.3d 251 (2010). Here, the prosecutor pointed out to the jury that during the time Gould and Officer Cox were waiting for Officer Noone to administer the breath test, Gould did not mention Amy or that someone else drove the pickup truck. The videotape of the stop shows that the two had some conversation during that time. But that was before Gould was told he was under arrest and read his Miranda rights and before he invoked his right to refuse to answer questions. Under Doyle, Gould's statements and his silence—the failure to mention Amy—before he was informed of his Miranda rights are fair game. The prosecutor properly could and did point out Gould's failure to mention Amy up to the point Gould was so informed.
For his next point on appeal, Gould contends the district court incorrectly responded to a question from the jury. During deliberations, the jury posed a written question seeking the definition of the term “attempting to drive.” After discussing the matter with counsel in Gould's presence, the district court formulated and read this response to the jury: “Any overt act toward operation or driving of a motor vehicle is an attempt. Operation means to drive. Attempt to operate requires no movement.” Both the prosecutor and Gould's lawyer agreed with the district court's proposed answer. Gould's lawyer specifically told the district court, “We're okay with that, Your Honor.”
Because Gould's lawyer affirmatively approved the response, Gould cannot assert any error in that response as an issue on appeal. If there were an error, it would have been invited through Gould's approval of the response. The Kansas Supreme Court has been quite clear on this point. State v. Adams, 292 Kan. 151, 163–65, 254 P.3d 515 (2011); State v. Bruce, 255 Kan. 388, 395–98, 874 P.2d 1165 (1994). Even if Gould's claim might have substantive merit—something we doubt, since the answer seems to be a fair statement of the law consistent with the reasoning in Perkins to which we have subscribed—we decline to consider the issue.
Gould next suggests the cumulative effect of the errors in his trial combined to deprive him of a fair hearing in front of the jury even if no single error did. We have found no preserved error. Accordingly, there is nothing to look at for cumulative impact. See State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010) (“A single error does not constitute cumulative error[, and] ... the doctrine is inapplicable.”). We necessarily reject any claim of cumulative error.
For his last point, Gould says the district court erred in not considering community service as an alternative to his paying the mandatory $1,500 fine imposed on third-time DUI offenders. The Kansas Supreme Court has held that at sentencing a district court must consider allowing a defendant facing a mandatory fine under K.S .A.2009 Supp. 8–1567(j) to substitute community service. See State v. Copes, 290 Kan. 209, Syl. ¶ 7, 224 P.3d 571 (2010); K .S.A. 21–4607(3). That did not happen here.
The State concedes error on this point in light of Copes. We, therefore, vacate the imposition of the fine and remand so that the district court may consider the community service option if the fine or some portion of it remains unpaid. Depending on the circumstances shown on remand, the district court may again impose the fine or may permit Gould to perform community service work as an alternative to payment.
Affirmed in part, vacated in part, and remanded with directions.