Opinion
No. 107,831.
2013-05-24
STATE of Kansas, Appellee, v. James P. HARRIS, Appellant.
Appeal from Shawnee District Court; Mark S. Braun, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Mark S. Braun, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Harris was convicted of fleeing and eluding, obstruction of legal process, and failure to use a turn signal. On appeal, Harris contends: (1) there was insufficient evidence to support his conviction for fleeing and eluding; (2) he did not receive a fair trial because the jury expressed concern for its safety during deliberations; (3) the district court erred when it permitted Trooper Ray Ramirez to state an opinion without a proper foundation; and (4) the district court erred when it permitted Trooper Ramirez and Lieutenant Dan McCollum to invade the province of the jury. We find the allegations of error to be without merit and affirm Harris' convictions.
Factual and Procedural History
On November 24, 2010, at 10:25 p.m., Trooper Ramirez conducted a traffic stop on Harris' vehicle for failing to use a turn signal. Harris pulled over into a diagonal parking space. There was a curb in front of Harris' vehicle, and, beyond the curb, there was a sidewalk and grass. On the passenger side of Harris' vehicle was a concrete median.
Trooper Ramirez approached Harris' vehicle and began to explain to Harris why he was pulled over. Trooper Ramirez noticed a billy club in the front passenger seat. Harris was instantly defensive and seemed angry. Trooper Ramirez asked Harris for his license, but, as Harris reached into his jacket, he turned his shoulder away from Trooper Ramirez to block the view of whatever he was concealing inside his jacket. Trooper Ramirez then asked Harris if he had any weapons in the vehicle; Harris did not answer the question. Trooper Ramirez asked Harris to step out of the vehicle so that he could conduct a pat-down search for weapons. Harris did not get out of his vehicle. Instead, Harris rolled up his window, lit a cigarette, told Trooper Ramirez that he would not let him search his vehicle, made a phone call, and turned off his ignition.
Trooper Ramirez called for a back-up officer and Lieutenant McCollum arrived. After Trooper Ramirez explained the situation to Lt. McCollum, Lt. McCollum decided to place “stop sticks,” a tire-deflating device, behind Harris' rear wheels to prevent Harris from driving away. Trooper Ramirez explained to Harris that the stop sticks were placed behind his rear tires and his tires would deflate if he tried to back up. The officers continued to ask Harris to get out of the vehicle; Harris continued to refuse. Harris eventually turned on his ignition, drove forward over the curb onto the sidewalk area, and proceeded down Washburn Avenue.
Lt. McCollum pursued Harris while Trooper Ramirez secured the stop sticks before engaging in the pursuit as well. The pursuit took place in a heavily populated area, on city streets, in residential areas, and in narrow alleyways. During the pursuit, Harris drove without headlights for five blocks, drove 40 miles per hour in a residential area, and failed to stop at two stop signs.
Harris was subsequently charged with obstructing legal process or official duty under K.S.A. 21–3808(a); fleeing and eluding under K.S .A.2009 Supp. 8–1568(b)(1); and failure to give a signal when making a turn under K.S.A. 8–1548(b).
During deliberations, the court read to counsel a note received from the jury: “[C]larification of our assurance of safety regarding the defendant who—then it says, was openly hostile during court proceedings; two, knows our names; three, knows our places of work, and four knows our professions and is the defendant allowed to take notes from proceedings home.” Defense counsel moved for a mistrial, alleging that the jury could not be fair and impartial. Defense counsel requested that the jury be polled and jurors be asked whether they could sit fairly and impartially in light of their submission. The district court denied Harris' motion for mistrial and directed the jury to Instructions 2, 5, and 16. Additional details of the jury instructions are in the analysis section below.
The jury convicted Harris as charged.
Harris filed a motion for new trial alleging (1) there was insufficient evidence to convict Harris on either of the alternative means of fleeing and eluding and (2) the district court erred in denying his motion for mistrial based on the submission by the jury. The district court denied Harris' motion, finding there was a sufficient record for Harris to be found guilty of all three counts and the jury's question did not arise to the level of severity for a new trial to be granted.
Harris was sentenced to 12 months' probation, with an underlying prison sentence of 6 months, and underlying jail term of 6 months, with postrelease supervision of 12 months.
Harris timely appeals.
Was There Sufficient Evidence Presented to Support Each Alternative Means of Fleeing and Eluding?
Harris contends there was insufficient evidence to support each alternative means of flee and eluding. The jury was instructed that Harris could be convicted of fleeing and eluding if it found Harris drove around a tire deflating device placed by a police officer or if he drove recklessly.
Standard of Review
When a jury is instructed on alternative means, the State must present evidence of each means to support a conviction. See State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). When sufficiency of the evidence is challenged following a conviction, “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). In determining whether there is sufficient evidence to support a conviction, the appellate court should not reweigh the evidence. State v. Hail, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Analysis
Was there sufficient evidence that Harris drove around a tire-deflating device?
Harris stretches credulity by alleging there was no evidence he drove around a tire-deflating device. Harris contends that he pulled forward and, thus, did not drive around a tire-deflating device; he merely avoided the tire-deflating device. Conversely, the State contends that the legislature intended for a driver to be convicted of fleeing and eluding if the driver intentionally avoided the tire-deflating device.
To determine the meaning of “around,” the court should “ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). The court should not impose a meaning of words in a statute beyond their common and usual definitions, State v. Brooks, 46 Kan.App.2d 601, 621, 265 P.3d 1175 (2011) (quoting State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 [2009] ),rev. granted on other grounds June 13, 2012, and should avoid absurd or unreasonable results. Dillon Real Estate Co., Inc. v. City of Topeka, 284 Kan. 662, 680, 163 P.3d 298 (2007). When there is any reasonable doubt as to the meaning of the statute, the statute should be decided in favor of the accused. Brooks, 46 Kan.App.2d at 621.
As the State points out, the ordinary meaning of “around” means “on all sides or in all directions; in a circle or circular motion ...; in [another] or towards the opposite direction ...; [o]n all sides of; in or to various [directions].” (Emphasis added.) See Webster's II New Riverside University Dictionary 126 (1988). Harris was aware that stop sticks were placed behind his rear tires and was advised that his tires would deflate if he attempted to back up. With this in mind, instead of backing up, Harris drove forward over the curb to avoid driving over the stop sticks. Given the ordinary meaning of “around,” driving in the opposite direction in an attempt to avoid the stop sticks equates to driving around them.
Viewing the evidence in the light most favorable to the State, there was sufficient evidence that Harris drove around a tire-deflating device.
Was there sufficient evidence that Harris drove recklessly?
Harris also contends there was insufficient evidence that he drove recklessly. Harris alleges he merely “left the scene of the stop, drove for a short period of time without his headlights; he slowed, but failed to come to a complete stop at two stop signs, and he drove 40 miles-per-hour.” The State contends that there was sufficient evidence to establish Harris drove recklessly, including Harris' rate of speed in a residential neighborhood, conditions of the roadway, driving without headlights, and running two stop signs.
“Reckless driving” means driving “any vehicle in willful or wanton disregard for the safety of persons or property.” K.S.A. 8–1566(a). In Kansas, “reckless” is defined as “ ‘driving a vehicle under circumstances that show a realization of the imminence of danger to another person or the property of another where there is a conscious and unjustifiable disregard of that danger.” ‘ State v. Remmers, 278 Kan. 598, 600, 102 P.3d 433 (2004). Recklessness requires more than ordinary negligence. Mere carelessness or inadvertence is insufficient to sustain a conviction for reckless conduct. Whether one's conduct is perceived as reckless or negligent depends on one's awareness of the risk of his or her behavior. 278 Kan. at 601.
In Remmers, defendant ran a stop sign during daylight hours and collided with a vehicle on a rural road. Defendant was charged with reckless driving. There was no evidence of speeding, swerving, driving erratically, or leaving the scene of the accident. Defendant stated that he was inattentive and failed to see the stop sign. The Kansas Supreme Court found no evidence that the defendant realized his conduct created an imminent risk of harm and held there was insufficient evidence to support defendant's conviction for reckless driving. 278 Kan. at 602.
In State v. Rutledge, No. 98,396, 2008 WL 4849123 (Kan.App.2008) (unpublished opinion), rev, denied 288 Kan. 835 (2009), defendant was convicted of fleeing and eluding while engaging in reckless driving. The defendant challenged his conviction based on insufficiency of evidence. At trial, the evidence established that defendant drove over a curb, entered traffic without headlights, and was observed swerving and running a number of stop signs. A panel of this court found sufficient evidence to affirm defendant's conviction. 2008 WL 4849123, at *7.
The evidence presented in this case is similar to Rutledge and distinguishable from Remmers. Harris' conduct was not the result of mere inattentiveness. Harris intentionally drove over the curb to avoid the tire-deflating device, entered traffic and drove at night without his headlights for five blocks, and ran two stop signs. In addition, the pursuit caused one vehicle to pull over, and Harris was reportedly going 40 miles per hour in a residential area. Further, both officers opined that Harris was driving recklessly. Trooper Ramirez stated that he believed Harris was driving recklessly “[b]ecause he had disregard for all the safety rules of the road and for the other motorists on the road.” Lt. McCollum stated that
“right around the Washburn campus there, driving with your lights off is extremely hazardous. I felt like he didn't have any regard for public safety at that time. Especially right when he takes off, there's another car coming by on Washburn that may or may not be able to see him.
“And then, going through such heavily populated area-and I realize it was late at night but it was also a holiday weekend. It was the night before Thanksgiving. And you know, people might be up a little later and out and about, and just—it didn't seem prudent to me for these actions to go on in such a heavily populated area, or anywhere.”
The record is replete with facts showing that Harris disregarded the imminent risk of danger he posed to other persons and property on the road when he committed various traffic violations during the pursuit.
Viewing the evidence in the light most favorable to the State, there was sufficient evidence that Harris drove recklessly. Accordingly, because there was sufficient evidence to support both alternative means of fleeing and eluding, Harris' right to a unanimous jury verdict was not violated.
Did the District Court's Response to the Jurors' Question Violate Harris' Right to an Impartial Jury?
Harris contends the district court violated his right to a fair and impartial jury when it refused to grant a mistrial after the jury expressed concern for its safety. The State contends that any prejudice was removed when the district court directed the jury to refer to Instructions 2, 5, and 16.
Standard of review
On appeal, a motion for a mistrial is reviewed for an abuse of discretion. State v. Leaper, 291 Kan. 89, 96, 238 P.3d 266 (2010). State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012), provides:
“Judicial discretion is abused if judicial action (I) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is 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.”
Analysis
K.S.A. 22–3423(1) states in relevant part: “The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because: ... (c) [p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” A trial court must engage in a two-step analysis when reviewing a motion for mistrial. Ward, 292 Kan. at 550. First, the trial court must determine whether there was a fundamental failure of the proceeding. Ward, 292 Kan. at 550–51. If so, then the trial court must assess whether it is possible to proceed without injustice to either the defendant or the state that cannot be cured or mitigated through a jury admonition or instruction. Ward, 292 Kan. at 550–51. A judge must declare a mistrial when the prejudicial misconduct cannot be removed by an admonition and instruction. Leaper, 291 Kan. at 97. A jury is presumed to have followed the instructions given to it. State v. Rivera, 48 Kan.App.2d 417, 444, 291 P.3d 512 (2012) (citing State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 [2012] ). When a trial court provides a correct statement of the law and does not emphasize defendant's guilt or innocence, the trial court's response does not constitute an abuse of discretion. State v. Murdoch, 286 Kan. 661, 684, 187 P.3d 1267 (2008).
In this case, before the jury rendered its verdict, the jury requested from the district court assurances regarding its safety from Harris. The district court denied Harris' motion for a mistrial and referred the jury to Instructions 2, 5, and 16. Instruction 2 stated: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.” Instruction 5 stated: “Your only concern in this case is determining if the defendant is guilty or not guilty.” Instruction 16 stated: “Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.”
The district court provided the jury with an accurate statement of the law and did not place an undue emphasis on Harris' guilt or innocence. The district court properly instructed the jury: (1) to base its decision on everything admitted into evidence; (2) to disregard any testimony that the court did not admit into evidence; and (3) to determine whether defendant was guilty or not guilty. There is no evidence that the jury did not follow the district court's instructions; thus, the jury is presumed to have followed the instructions given to it.
Harmless error
However, if the district court did err in its response to the jury, such error was harmless.
The right to a trial by an impartial jury is a basic guarantee of both the United States and Kansas Constitutions. U.S. Const. Amend. VI, XIV; Kan. Const. Bill of Rights, § 10. When a constitutional error is raised, the district court should apply the harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967). Ward, 292 Kan. at 556. In Chapman, an error is considered harmless if the party benefiting from the error proves beyond a reasonable doubt that the error did not contribute to the outcome of the trial. Ward, 292 Kan. at 556. In this case, the State bears the burden of establishing beyond a reasonable doubt that the error did not contribute to the verdict.
The State contends that the error was harmless because of a document discovered after the jury rendered its verdict, which stated:
“To be clear, we voted unanimously on each count based on evidence ONLY. It was only AFTER we had concluded that concerns were raised. Based on hostile behavior noted during the trial, some were worried about his reaction upon hearing the verdict and potentially directing anger towards jury members.
“His behavior was never discussed while voting on each count so it was not a part of our decision [and] our verdict would not change based on your response. This was simply not a point discussed before as the judge spoke of our duties.”
When denying Harris' motion for new trial, the judge stated:
“I think in this situation, however, they had concerns over safety and the information that the defendant knew about the jurors. If that was going to have an intimidating factor, or a negative factor, or a negative result, it appears to me that the jurors would be more likely to come back with a hung jury or a verdict of not guilty.”
Although merely persuasive authority, State v. Davis, 107 S.W .3d 410 (Mo.App.2003) is similar to this case. During deliberations, the jury expressed concern for the safety of a juror's granddaughter who attended the same school as the defendant's daughter. Defense counsel moved for a mistrial. After the jury rendered its guilty verdict, the judge questioned the jury; jurors reported that their safety concerns for the granddaughter had no effect on their deliberations. The trial court determined that the jury's safety concerns did not influence its verdict and denied defendant's motion. The Missouri Court of Appeals found no abuse of discretion in the trial court's denial of defendant's motion for mistrial. 107 S.W.3d 410 at 420.
In this case, the jurors expressed concern for their safety because of Harris' hostility during trial and his knowledge of their names, addresses, and professions. The district court did not poll the jurors to see if their safety concerns had any effect on their verdict, but the document discovered after the jury rendered its verdict unequivocally establishes that the jury did not consider Harris' behavior during deliberations.
The State has established that the error, if any, was harmless beyond a reasonable doubt.
Did the District Court Err in Permitting Trooper Ramirez To State an Opinion that Harris Drove Recklessly?
Harris contends that the district court erred in allowing Trooper Ramirez to express an opinion that Harris was driving reckless because the State did not lay a proper foundation. In response, the State contends that Trooper Ramirez saw Harris pull away from the initial stop and observed Harris driving in front of him.
Standard of review
The admission of opinion evidence is reviewed for an abuse of discretion. State v. Shadden, 290 Kan. 803, 819, 235 P.3d 436 (2010). Judicial discretion is abused if the judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Ward, 292 Kan. at 550. The party asserting abuse of discretion bears the burden of showing such an abuse. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561 (2009).
Analysis
A layperson is permitted to testify in the form of an opinion if the court finds that the opinion (1) is rationally based on the perception of the witness and (2) is helpful to a clearer understanding of his testimony. K.S.A. 60–456(a). Experts are permitted to testify in the form of an opinion if the court finds that the opinion is (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness. K.S.A. 60–456(b). The court may reject the testimony of a witness if the court finds that no trier of fact could reasonably believe that the witness actually perceived the matter. K.S.A. 60–419.
Prior to the State asking Trooper Ramirez his opinion, the following exchange took place:
“Q. What did [Harris] do?
“A. He drove away.
“Q. How did he drive away?
“A. He drove forward, turning to the right, and then back out onto the street on Washburn Avenue.
“Q. When he drove forward, turning to the right, what did he drive on?
“A. On the curb, and then the little median strip separating the parking area from—it's either a driveway or another parking area, and he drove up over that to get to Washburn.
“Q. Is there also a sidewalk there?
“A. Yes, there is a sidewalk there.
“Q. And you said those are apartments, correct?
“A. That's correct.
“Q. Were there other vehicles in the area?
“A. If there were, I didn't see them, I was focused on Mr. Harris and his car.
“Q. After he drove forward over the curb, where did he go?
“A. After he drove forward over the curb, he headed southward on Washburn Avenue and turned towards the east on ... Byron Street, I believe....
....
“Q. Okay. After you put the stop sticks in your vehicle, what did you do?
“A. Then I also engaged in the pursuit, although I was probably a block away, so I was a little late.
“Q. While you were following Lieutenant McCollum and Mr. Harris, did you see other persons on the roadway?
“A. Yes, I did, other vehicles.
....
“Q. Trooper, my question was, did you believe that Mr. Harris was driving recklessly during this time period?
“A. Yes, I did.
“Q. Why do you believe that?
“A. Because he had disregard for all the safety rules of the road and for the other motorists on the road.”
The district court did not abuse its discretion when it permitted Ramirez to express an opinion that Harris was driving recklessly. The court's actions were not arbitrary, fanciful, or unreasonable; based on an error of law; or based on an error of fact. Trooper Ramirez saw Harris drive over the curb onto a median, saw other vehicles on the road during the pursuit, and was about a block behind Lt. McCollum and Harris during the pursuit. Ramirez' opinion was based on his personal perception of Harris' driving and his experience and training as a police officer.
Harmless error
However, even if we were to find that the district court erred in admitting Trooper Ramirez' opinion testimony, such error was harmless.
The admission of opinion evidence is reviewed under K.S.A. 60–261. The party benefiting from the error must prove there was no reasonable probability that the error contributed to the verdict. Ward, 292 Kan. at 556.
The State contends that the error was harmless because the State presented additional testimony that Harris drove recklessly. On direct, Lt. McCollum testified for the State as follows:
“Q. When you say he drove away, how did he drive away?
“A. Well, there on Washburn, there's the newer apartments between Lane and Washburn. He was parked up against—we were heading kind of southbound on Washburn. He was parked in an angle against the curb, and then there's a sidewalk, then there's the apartments. When he drove away, he actually drove up over the curve on the sidewaiking area and then back out and around back onto Washburn so he didn't run over the tire deflation devices.
“Q. What did you do when he left?
“A. I went back to my patrol car, activated the lights and sirens, and called out a vehicle pursuit.
“Q. Did you then begin to follow him?
“A. Yes.
“Q. Do you see him ahead of you as you were following him?
“A. I lost sight of him for just a second at the crest of the hill, and then I regained sight of him in the vehicle.
....
“Q. “During this time period, did you observe the defendant driving without his lights on?
....
“A. Yeah, one, two, three, four—yeah, five—five-ish [blocks].
....
“Q. So headlights were required?
“A. Yes.
“Q. Was there other traffic on Washburn as you were pursuing him?
“A. Yes, there was other traffic on Washburn and on Lane.
“Q. As you were following him through the neighborhood.... [D]o you ever note speed?
“A. I didn't at this time because I'm trying to concentrate on my driving. I did—I did remember, once we got going east here, we were probably around the 40–mile–an–hour range. At least I was. I couldn't tell you what he was. But for me for to keep up with him, that was the speed I was going.
....
“Q. Did you believe at that time that he was traveling at speeds at around 40 miles an hour?
“A. Around 40.
“Q. Are you familiar with what the speed limit is here in this residential area?
“A. No, I'm not. Most of them are 30, but I couldn't tell you exactly what it is on that road.
....
“Q. Did you observe him violate any traffic signals?
“A. Yeah, he didn't stop for two stop signs on 13th Street.
“Q. How would you describe some of the alleyways and roadways that you went through during the pursuit?
“A. Well, roadways are city streets with houses lining them, and even goes by a park, so pretty heavily populated area. And the alleyway is very narrow, not much more than the patrol car that I had would fit down those alleys. There's some businesses along the way, but the streets are pretty much urban city street.
....
“Q. Why did you consider him to be driving recklessly?
“A. Well, right around the Washburn campus there, driving with your lights off is extremely hazardous. I felt like he didn't have any regard for public safety at that time. Especially right when he takes off, there's another car coming by on Washburn that may or may not be able to see him.
And then, going through such heavily populated area—and I realize it was late at night but it was also a holiday weekend. It was the night before Thanksgiving. And you know, people might be up a little later and out and about, and just—it didn't seem prudent to me for these actions to go on in such a heavily populated area, or anywhere.”
In State v. Richardson, No. 103,905, 2012 WL 603214 (Kan.App.2012) (unpublished opinion), the defendant was charged with engaging in sexual intercourse with knowledge that he was infected with a life-threatening communicable disease. The district court admitted a taped interview that revealed defendant's knowledge of his HIV status. During trial, defendant testified about his HIV-positive status. A panel of this court held that the admission of the taped interview was harmless and there was no reasonable probability that the admission of the taped interview affected the outcome of the trial because the information contained in the taped interview also came out through other evidence during trial. 2012 WL 603214, at *4.
Here, even if the district court abused its discretion by allowing Trooper Ramirez to express an opinion, the error was harmless because the State offered other evidence to support its contention that Harris drove recklessly, namely Lt. McCollum's testimony and the video of the police pursuit. Accordingly, there was no reasonable probability that the error contributed to the outcome of the trial.
Did the District Court Allow Trooper Ramirez and Lt. McCollum To Invade the Province of the Jury?
Finally, Harris contends that the admission of Trooper Ramirez' and Lt. McCollum's opinion testimony invaded the province of the jury because the troopers testified as to one of the ultimate issues in the case. The State contends that the troopers' opinions that Harris drove recklessly did not invade the province of the jury because the ultimate issue was whether Harris fled and eluded officers.
Standard of review
The admission of opinion evidence under K.S.A. 60–456 is reviewed for an abuse of discretion. Shadden, 290 Kan. at 819. Judicial discretion is abused if the judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Ward, 292 Kan. at 550. The party asserting abuse bears the burden of showing such an abuse. Wells, 289 Kan. at 1226.
Analysis
A layperson is allowed to testify in the form of an opinion if the court finds that the opinion (1) is rationally based on the perception of the witness and (2) is helpful to a clearer understanding of the testimony. Experts are permitted to testify in the form of an opinion if the court finds that the opinion (1) is based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness. Testimony in the form of opinions or inferences otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of the fact. See K.S.A. 60–456(a)–(d).
In City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997), an officer was permitted to express an opinion that defendant was intoxicated and could not safely operate a vehicle. Our Supreme Court concluded that the officer was not expressing an opinion as to defendant's guilt but was expressing an opinion based on his personal observations and expertise as a police officer. The court found no abuse of discretion in admitting the officer's opinion testimony. 262 Kan. at 242.
Harris argues that Hadley was wrongly decided. However, our Supreme Court reaffirmed Hadley in State v. Kendall, 274 Kan. 1003, 1013, 58 P.3d 660 (2002). This court is bound to follow precedent from the Kansas Supreme Court absent an indication that the Kansas Supreme Court is departing from its previous decision. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012).
In Kendall, the court found no abuse of discretion in admitting an officer's opinion that defendant was under the influence of alcohol in a DUI case. The court stated: “Here, as in Hadley, Officer Henderson did not opine that Kendall was guilty of a crime. Officer Henderson simply stated that, in his opinion, Kendall was under the influence of alcohol.” Kendall, 274 Kan. at 1013. This “type of testimony is acceptable even though it embraces the ultimate issue to be decided by the jury.” However, a witness is not permitted to give an opinion that the defendant is guilty. 274 Kan. at 1013.
Like the officers' testimony in Hadley and Kendall, Trooper Ramirez and Lt. McCollum testified that Harris drove recklessly based on their own personal observations and experience as police officers. Neither Trooper Ramirez nor Lt. McCollum gave an opinion that Harris was guilty of a crime. Further, the ultimate question for the jury to decide was whether Harris fled and eluded the officers, not whether he drove recklessly. Thus, the troopers did not invade the province of the jury.
Harmless error
Again, even if the district court erred in admitting the opinion testimony of Trooper Ramirez and Lt. McCollum, the error was harmless.
Admission of opinion evidence is reviewed under K.S.A. 60–261. The party benefiting from the error must prove there was no reasonable probability that the error contributed to the verdict. Ward, 292 Kan. at 556.
The State contends there was sufficient evidence to support a finding that Harris engaged in reckless driving independent of the officers' opinion testimony. Specifically, the State contends that Trooper Ramirez' and Lt. McCollum's testimony regarding their personal observations and the admission of the video recording of the pursuit was sufficient to prove that Harris engaged in reckless driving.
If the opinion evidence was admitted in error, it was harmless if the information also came out through other evidence produced at trial. See Richardson, 2012 WL 603214, at *4. The troopers' testimony of their personal observations of Harris' driving was sufficient to support a finding that Harris did flee and attempted to elude law enforcement by driving around a tire-deflating device and by engaging in reckless driving. Accordingly, there was no reasonable probability that the error contributed to the outcome of the trial.
Affirmed.