Opinion
No. 110780.
03-20-2015
STATE of Kansas, Appellee, v. Christopher SHEARER, Appellant.
Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., for appellant. Marlea J. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., for appellant.
Marlea J. James, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
After a bench trial, the Republic County District Court convicted Defendant Christopher Shearer of driving under the influence, a misdemeanor violation of K.S.A.2011 Supp. 8–1567, and he appeals on the narrow ground that the State failed to establish a proper evidentiary foundation to admit the results of his breath test. We find no reversible error and affirm the conviction.
Given the focused nature of the asserted error, we dispense with a detailed discussion of the underlying facts and most of the procedural history, since they have no direct bearing on the appeal. In February 2012, Kansas Highway Patrol Trooper Rodney King arrested Shearer and administered a breath test to him using an Intoxilyzer 8000 kept at the Republic County Sheriff's Department. The test showed Shearer's blood alcohol level to be. 151, well over the legal limit of .08 necessary for a DUI conviction. At the bench trial in September 2013, the State sought to introduce the results of Shearer's breath test. As part of the foundation for admitting the test results, the State offered various documents. The State called Republic County Sheriff's Deputy Kade O'Dell, who identified himself as the custodian of the Intoxilyzer 8000 and the paperwork associated with the machine, as the sponsoring witness for much of that evidence. Shearer interposed hearsay and foundation objections to several documents. The district court overruled the objections, admitted the test results, and convicted Shearer.
On appeal, Shearer focuses on two of the documents and contends his trial objections were well-taken. We consider those points and then address Shearer's argument, raised for the first time on appeal, that the admission of the documents compromised his right of confrontation secured in the Sixth Amendment to the United States Constitution.
First, Shearer challenges the admissibility of a document the State offered to show the content of a known alcohol solution used to confirm the accuracy of the Intoxilyzer 8000. As part of the testing sequence, the Intoxilyzer 8000 automatically runs ambient air samples and measures a known solution containing .08 alcohol to establish it is operating correctly when testing a suspect's breath. In this case, the State offered a document on the letterhead of ILMO Specialty Gases and entitled “Certificate of Analysis” to prove that the known solution actually contained .08 alcohol. The paper so states. It is signed by someone identified as the “Specialty Gas Lab Manager” and is dated November 4, 2011. The document also bears the phrase “Furnished by KDHE” that appears to have been stamped on the paper and is followed by a handwritten entry of “12/8/11.”
In the face of Shearer's hearsay and foundation objections, the prosecutor argued that the ILMO Specialty Gases document constituted a business record and should be admitted under that hearsay exception. See K.S.A.2014 Supp. 60–460(m). The district court overruled the objection and admitted the document.
Generally, an appellate court reviews the admission of hearsay evidence using an abuse of discretion standard. State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012). But when the issue turns on the application of a specific statutory hearsay exception, the appellate courts make an unlimited review without deference to the trial ruling. 293 Kan. at 1023. In that circumstance, the issue may be more aptly characterized as one of statutory interpretation. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (appellate courts exercise unlimited review of statutory construction).
Although the ILMO Specialty Gases document appears to be a business record, it would be a business record of that company and not the Republic County Sheriff's Department. Simply because the document wound up with the Sheriff's Department and is maintained in a file there doesn't convert it into a business record of the department for hearsay purposes. That would contravene the function of the hearsay rule and the theory behind the exceptions to it.
The general rule excludes hearsay because the declarant—the person making the statement—is not present and, therefore, is not subject to the common tools for establishing and testing credibility in the litigation process: (1) the taking of an oath to tell the truth; (2) the rigor of cross-examination; and (3) the factfinder's opportunity to gauge demeanor. In re Guardianship & Conservatorship of L.M.H., No. 108,297, 2013 WL 2395900, at *13 (Kan.App.2013) (unpublished opinion); see State v. Becker, 290 Kan. 842, 846, 235 P.3d 424 (2010) ; United States v. Owens, 789 F.2d 750, 756 (9th Cir.1986), rev'd on other grounds 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) ; Garza v. Delta Tau Delta Fraternity Nat., 948 So.2d 84, 89 (La.2006). The exceptions to the rule of exclusion typically substitute other indicia of credibility or trustworthiness inherent in the statements themselves, thereby warranting their admission as evidence. In re L.M.H., 2013 WL 2395900, at *13. The business records exception rests on the notion that a company will make every reasonable effort to insure the accuracy of records upon which it relies. Clark v. City of Los Angeles, 650 F.2d 1033, 1037 (9th Cir.1981) (“The basis for the business record exception is that accuracy is assured because the maker of the record relies on the record in the ordinary course of business activities.”).
The hearsay exception for business records requires:
“Writings offered as memoranda or records of acts, conditions or events to prove the facts stated therein, if the judge finds that (1) they were made in the regular course of a business at or about the time of the act, condition or event recorded and (2) the sources of information from which made and the method and circumstances of their preparation were such as to indicate their trustworthiness.” K.S.A.2014 Supp. 60–460(m).
The party offering business records need not necessarily call the custodian of the records within the corporation or the individual who actually prepared them. See State v. Smith, 268 Kan. 222, 238, 993 P.2d 1213 (1999). But the proponent must offer competent evidence about the way the records have been compiled and maintained to show their trustworthiness. 268 Kan. at 238. Typically, the evidence should come from someone within the organization knowledgeable about the recordkeeping process. For example, in Smith, an assistant vice president of a bank sufficiently established a foundation for various corporate records because she was “familiar with” and could testify as to how they were prepared, although she neither created the documents nor was the official keeper of them. 268 Kan. at 238.
Here, the State failed to present a competent sponsoring witness to lay a foundation for the ILMO Specialty Gases document as a business record. We do not see another hearsay exception that would have readily sufficed. We, therefore, presume for purposes of the appeal that the district court erroneously admitted that document at Shearer's trial. But the error appears harmless.
Shearer would have been prejudiced only if the State had to prove the known solution contained .08 alcohol as a necessary condition for the admission of the Intoxilyzer 8000 reading of his breath sample. The State did not have to do so. State v. Ernesti, 291 Kan. 54, 62, 239 P.3d 40 (2010). In Ernesti, the court held that the evidentiary requirements to admit the results of a breath test are the criteria enumerated in K.S.A.2009 Supp. 8–1002(a)(3) : the machine has been certified by the Kansas Department of Health and Environment; the test procedures comported with KDHE requirements or protocol; and the person administering the test has KDHE certification to operate the particular testing equipment. 291 Kan. at 62–63 ; see K.S.A.2011 Supp. 8–1002(a)(3). Anything more goes to the weight the factfinder may give the test results rather than their admissibility in the first place.
Based on the record evidence, verification of the alcohol content of a known solution used as part of the automated testing sequence of the Intoxilyzer 8000 is not mandatory under the criteria in K.S.A.2011 Supp. 8–1002(a)(3), particularly the KDHE protocol. At the trial, the State introduced the KDHE's written protocol for the Intoxilyzer 8000. The protocol directs the operator to confirm the Intoxilyzer 8000's automated testing sequence after starting the machine and describes the sequence as: an air blank (ambient air), the external standard check, another air blank, the subject's breath, and a final air blank. The protocol also requires the Intoxilyzer 8000 measure the external standard as between .075 and .085. But the protocol does not mandate independent verification of the composition of the solution used as the external standard. The State, therefore, need not establish where the known solution came from or its actual content to lay a sufficient foundation to admit the result of defendant's breath test. To comply with the KDHE protocol, the State simply must show the Intoxilyzer 8000 completed the described test sequence and reported the external standard check to be within the required range. Accordingly, a record establishing the alcohol content of the known solution used for the external standard check need not be admitted at trial as part of the evidentiary foundation for the defendant's breath-test results.
We certainly recognize that in DUI cases, the State would want to show the factfinders that the Intoxilyzer 8000 and similar testing equipment are accurate and reliable. And explaining the protocols for their use, including the testing of a known solution, could be part of that showing. In turn, the State might want to go into some detail about the provenance of the known solution used for the external standard check. That sort of information would enhance the weight the factfinders might give the test results and, therefore, erase any reasonable doubt about a defendant's guilt. But that bears on the sufficiency of the evidence. Here, Shearer wisely has chosen not to challenge the sufficiency of the evidence supporting his conviction.
On that basis, Shearer has failed to demonstrate prejudicial error in the admission of the document from ILMO Specialty Gases stating the composition of the known solution.
For his second point, Shearer contends the district court erred in admitting a copy of a certificate issued by the KDHE stating that the Republic County Sheriff's Department “has met the requirements ... for testing of human breath for alcohol ... with the Intoxilyzer 8000, Serial No. 80–002851.” The prosecutor presented O'Dell as the sponsoring witness for the copy of the KDHE certificate. As we have already noted, proof of KDHE certification is necessary to admit the results of the defendant's breath test. The district court overruled Shearer's objection based on hearsay and foundation and admitted the certificate as a business record of the sheriff's department. The district court properly overruled the objection but for the wrong reason. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005) (“The reason given by the trial court for its ruling is immaterial if the result is correct.”).
The KDHE certificate should not have been treated as a business record of the Republic County Sheriff's Department because the department did not prepare it and could not independently aver its trustworthiness.[