Opinion
No. 107,016.
2013-02-22
STATE of Kansas, Appellee, v. Siegmond E. KENDALL, Jr., Appellant.
Appeal from Sedgwick District Court; Jeffrey L. Syrios, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey L. Syrios, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Siegmond E. Kendall, Jr., appeals his jury conviction of driving under the influence of alcohol (DUI).
Kendall raises two issues on appeal. He contends the outdated reasonable doubt instruction given was clearly erroneous because it lowered the State's burden of proof, and it was reversible error to admit the police officer's opinion that Kendall was under the influence to such an extent that he was incapable of safely operating a motor vehicle.
The record reflects that in the early morning hours of November 22, 2009, Officer Allen Bosley stopped Kendall's vehicle for speeding. When Officer Bosley approached the driver's side of the stopped vehicle, he immediately noted a strong odor of alcohol. Officer Bosley suspected Kendall was impaired when he observed Kendall's eyes were bloodshot, his speech was slurred, and he had difficulty locating and producing his license and registration. Kendall admitted to consuming a pitcher of beer earlier in the evening.
Kendall refused to perform field sobriety tests, causing him to be arrested and transported to the Sedgwick County Jail. He later refused blood-alcohol testing.
Kendall was charged with DUI and speeding. A jury convicted him of both charges.
The district court sentenced Kendall to 12 months in jail and imposed the mandatory $2,500 fine for a fourth or subsequent DUI offense. Kendall timely appeals.
Kendall first argues the district court committed reversible error when it gave an outdated version of the reasonable doubt jury instruction because the instruction given lowered the State's burden of proof. Kendall admits he did not object to this instruction.
The Supreme Court, speaking through Justice Johnson, recently clarified that review of instructional issues requires a three-part process. State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012). The first step is a reviewability inquiry using an unlimited standard of review. Reviewability of jury instructions is controlled by K.S.A. 22–3414(3), which states that “[n]o party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection....” The statute then provides an exception applicable in Kendall's case by adding, “unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 22–3414(3); see Williams, 295 Kan. at 515.
The second step in the review process is a consideration of the merits. In other words, was it error to give the instruction? This step also presents a legal question subject to unlimited review. 295 Kan. at 515–16.
The third step is the reversibility inquiry. The definition of clearly erroneous provides the test for reversibility—whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This requires a review of the entire record and, thus, involves a de novo determination. The burden to show clear error is on the defendant. 295 Kan. at 516.
The trial court instructed the jury on reasonable doubt, Instruction No. 7, which provided in part:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
The current approved PIK Crim.3d 52.02 instruction applicable to Kendall's offense provides the following test:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Kendall maintains that the use of the word “any” in the final sentence told the jury that in order to find him guilty, it merely had to find proof beyond a reasonable doubt of one of the State's claims. Kendall relies on State v. Miller, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), petition for rev. filed February 22, 2012; cross-petition for rev. filed March 7, 2012.
The written jury instruction in Miller on reasonable doubt followed the current PIK Crim.3d 52.02 instruction except it transposed the words each and any causing the instruction to read as follows:
“ ‘The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.’ “ 2012 WL 401601, at *2.
The most objectionable part of the Miller instruction was the fact it told the jury it could acquit Miller only if it had reasonable doubt about each claim or element rather than a reasonable doubt as to any one of the elements. See 2012 WL 401601, at *2–5.
While we are in agreement with the ultimate holding in our Miller case, we must recognize that in the case before us the language recommended in PIK Crim.3d 52.02 prior to 2005 was utilized, which used the word “any” in each of the sentences set forth above. But that difference must be considered realizing that Miller also questioned the use of “any” in both positions, as the jury was apparently orally instructed. Relevant to Kendall's complaint about the use of the word “any” in the last sentence of the instruction, Miller found its use in that position could be interpreted to mean “ ‘every one’ “ or “ ‘all’ “ of the claims. 2012 WL 401601, at *6.
Another panel of our court in State v. Womelsdorf 47 Kan.App.2d 307, 330–34, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012, in considering the same issue which is before us, discounted Miller's concern about the use of the word “any” in the second part of the instruction stating it was dicta. The burden of proof instruction in Womelsdorf as in our case, utilized the word any in both the sentences being examined.
We will not here point out all of the analysis of the Womelsdorf panel which we find to be persuasive. However, Womelsdorf noted that Miller did not discuss State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). Beck held the use of “any” in the final sentence of the instruction did not create ambiguity, particularly when the instructions are read as a whole and in view of the elements instruction that stated to establish the charge, “ ‘ each of the following claims must be proved....’ “ Womelsdorf, 47 Kan.App.2d at 333. The elements instructions in our case relating to both the DUI and speeding contains the same “each of the following claims must be proved.”
The Womelsdorf opinion recognized that in Miller the elements instruction required the jury to find each of the following claims to be proved as well, but it pointed out that
“the Miller court found that there was tension between this requirement and the reasonable doubt jury instruction's language stating that, in order to acquit, the jury must find ‘reasonable doubt as to the truth of each of the claims required to be proved by the State.’ 2012 WL 401601, at *5. But that language was not present in Womelsdorf's instruction; rather, her instruction told the jury that, in order to acquit, it must find ‘reasonable doubt as to the truth of any of the claims required to be proved by the State.’ In this way, Womelsdorf's case is again distinguishable from Miller.” Womelsdorf, 47 Kan.App.2d at 333–34.
The Womelsdorf panel concluded the current version of PIK Crim.3d 52.02 provides the most accurate test for reasonable doubt and is an improvement over the earlier version. Nevertheless, citing State v. Clark, 261 Kan. 460, 474–75, 931 P.2d 664 (1997), for its holding that the pre–2005 version of PIK Crim.3d 52 .02—the version used in both Womelsdorf and Kendall's case—accurately reflected the law of this state and properly advised the jury on reasonable doubt, Womelsdorf held that instructing the jury using the prior version of PIK Crim.3d 52.02 was not clear error. 47 Kan.App.2d at 334.
Kendall's appellate brief was filed before Womelsdorf was decided, but the brief acknowledged the Beck decision and contended it analyzed an outdated version of PIK Crim.3d 52.02 and Miller constituted persuasive argument that Beck was wrongly decided.
We do not believe that Beck was wrongly decided. But, neither was Miller 's criticism of the use of “any” in the last sentence of the reasonable doubt instruction wrong because otherwise, the instruction would not have been modified to now state: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) However, several panels that have addressed the same issue Kendall raises have reached the conclusion that Miller is not controlling and the instruction using “any” instead of “each” in the last sentence of the instruction was not “clear error.” See, e.g., Womelsdorf, 47 Kan.App.2d at 334;State v. Harris, No. 107,465, 2012 WL 5205722, at *2 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 19, 2012. The discussion of the old reasonable doubt instruction (using “any” in each position) in Miller is plainly dicta and appears to assess that instruction in isolation rather than as part of a full set of jury instructions as the Beck decision did.
Cases decided following the Williams' clarification of the clearly erroneous standard of review have found the giving of the pre–2005 version of PIK Crim.3d 52.02 is not error. See State v. Snowden, No. 107,284, 2012 WL 5869612, at *13 (Kan.App.2012) (unpublished opinion) (“Because the panels in Womelsdorf and [State v. Kling, No. 106,361, 2012 WL 2045375, at *2–3 (Kan.App.2012) (unpublished opinion), petition for rev. filed July 2, 2012,] found that the instruction was not the best practice, it is arguable that under the clarified standard of review set out in Williams, there was no error and we need not proceed to conduct a reversibility injury.), petition for rev. filed December 17, 2012; State v. Burdick, No. 103,263, 2012 WL 5869433, at *4 (Kan.App.2012) (unpublished opinion) (the new version of PIK Crim.3d 52.02 clarifies reasonable doubt but that does not make the old version bad law), petition for rev. filed December 17, 2012.
As was held in Snowden, giving the older version of PIK Crim.3d 52.02 was not error. See State v. Davis, 284 Kan. 728, 739, 163 P.3d 1224 (2007) (recognizing the use of the word “until” in the former version of PIK Crim.3d 52.02 was improved by thereafter being modified to “unless,” but instructing the jury with the former version could not mislead the jury). Use of the updated PIK instructions is obviously preferable and strongly recommended because PIK instructions “ ‘have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions' [, citation omitted],” but it is not mandatory. State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009). Contrary to Kendall's argument, we hold giving the prior version of PIK Crim.3d 52.02 was not structural error as held in Miller, which is distinguishable.
Although the analysis could end at this point without application of the Williams' test for reversibility, in Kendall's case it is extremely unlikely the jury would have reached a different verdict even if it had been instructed using the current version of PIK Crim.3d 52.02. Officer Bosley testified Kendall had all the classic signs of intoxication—a strong odor of alcohol, bloodshot eyes, slurred speech—and it was his opinion that Kendall was under the influence of alcohol to the extent Kendall was incapable of safely operating a vehicle.
Kendall finally complains the trial court improperly admitted Officer Bosley's opinion testimony. Kendall admits he failed to object to this testimony, but he says the issue is reviewable as a question of law and necessary to serve the ends of justice.
The State correctly notes that Kendall is trying to present an evidentiary issue for review that required a timely and specific objection at trial as is required by K.S.A. 60–404, and State v. King, 288 Kan. 333, 347–49, 204 P.3d 585 (2009).
We decline to add on this issue for the first time on appeal. It has been decided against Kendall in prior appeals, and as our Supreme Court said in State v. Richmond, 289 Kan. 419, 430, 212 P.3d 165 (2009), if the appellate courts overlook contemporaneous objections on the grounds addressing the issue is necessary to serve the ends of justice, “these and other case-law exceptions would soon swallow the general statutory rule.”
Affirmed.