Opinion
No. 108,047.
2013-08-30
STATE of Kansas, Appellee, v. Richard SWEET, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Richard Sweet's direct appeal of his felony driving under the influence (DUI) conviction.
Sweet raises two appellate issues. He first argues the district court erroneously allowed Police Service Officer J.R. Shaver (not a sworn police officer) who was present at the time to testify to the actions and statements of sworn Police Officer Michael Rago at the hospital which preceded the drawing of Sweet's blood pursuant to K.S .A.2009 Supp. 8–1001.
Sweet further argues that the district court erred in not requiring the State to prove he was in a physical condition that allowed him to understand the statutorily mandated consent advisory given to him by Officer Rago.
The record and testimony at trial showed the following facts and legal proceedings.
On June 21, 2010, around 10:30 p.m., Barbara Ward was driving home from work in Wichita when she saw sparks fly from a motorcycle going past her car on the right. She did not see who was driving the motorcycle or what happened, but shortly after seeing the sparks, she looked forward and saw a person lying on the ground. She called 911.
Emergency Medical Services (EMS) arrived around 10:41 p.m. and treated the man lying on the ground. The man identified himself to the paramedics as Richard Sweet. Sweet told EMS paramedic Kyle Burch that he had been riding the motorcycle and had wrecked. For medical and treatment purposes, Sweet told Burch that he had consumed alcohol that evening. Sweet was placed on a backboard and transported via ambulance to the hospital. Sweet was the only person on the motorcycle.
Police Officer Jason Kimminau arrived on the scene at 10:45 p.m. Based on his training and experience, Officer Kimminau testified that the motorcycle had struck a curb, lost control, and slid about 150 feet. The motorcycle was registered to Richard Sweet.
A Wichita Police Department Service Officer, Shaver, went to the hospital to assist commissioned Police Officer Rago in obtaining a blood sample from Sweet. Shaver is not a commissioned police officer. Shaver testified at trial that he was present at the hospital and heard commissioned Police Officer Rago ask Sweet to consent to the blood draw. Sweet refused and said he wanted to talk to his attorney.
Shaver held the DC–70 implied consent advisory form over Sweet's face as it was read to him by commissioned Police Officer Rago. The form explained Sweet's rights and that he did not have the right to speak to an attorney regarding whether blood could be drawn.
Shaver and Rago determined that the parameters were met for a forced blood draw. Phlebotomist Shenisse Espinoza performed the blood draw. The blood draw indicated a blood alcohol level in excess of the .08 legal limit for driving.
Sweet was charged with two alternative counts of felony DUI. At the ensuing bench trial, service officer Shaver testified for the State, but Officer Rago did not. Defense counsel objected to much of Shaver's testimony concerning Officer Rago's statements and actions contending the testimony was inadmissible hearsay.
Sweet objected to Shaver testifying that the DC–70 notice had been read to Sweet because Shaver was not the person who actually read Sweet the notice. The district court overruled the objection saying, “[H]e can testify to what he heard.” Later, Shaver testified that Sweet was shown the DC–70 document and that Officer Rago had explained to Sweet that he did not have a constitutional right to consult an attorney regarding the blood draw. Sweet again objected, claiming Shaver's testimony constituted hearsay. Sweet argued that the police officer who read the DC–70 notice to Sweet was the only person who could testify to this. The court delayed ruling and instructed the State to lay the foundation regarding why the use of the DC–70 form was necessary. After the State established the purpose of the DC–70 form, the State moved to admit the DC–70 form into evidence. Sweet objected, arguing Shaver was the incorrect witness to lay the foundation for the document because his name was not on the DC–70 form, Shaver did not read it to Sweet, and Shaver did not prepare it or see the police officer prepare it. The court excluded the DC–70 document from evidence as an exhibit but overruled Sweet's previous hearsay objection by admitting Shaver's testimony into evidence.
Sweet also objected when the State offered the vial of Sweet's blood into evidence. Sweet claimed lack of foundation, arguing that the sworn police officer who requested and supervised the blood drawn needed to be the one on the witness stand to testify to what he said and did that night. Sweet also argued it was hearsay for Shaver to testify that the police officer made the request to the phlebotomist to draw Sweet's blood. The State argued that Shaver was only testifying to things that he personally heard or saw—the police officer reading Sweet the DC–70 and the police officer's request to the phlebotomist to draw Sweet's blood. The court clarified that it needed to decide whether the commissioned police officer had to be present at trial to testify that a request was made or whether that testimony could come from a witness who observed and heard the officer make the request.
The court overruled the objection, stating:
“[I]t's my understanding of the law that the officer won't need to be present that made the request for the blood draw in order to establish probable cause that a blood draw was warranted in those set of circumstances. But my reading of the statute is that when there is a traffic accident, probable cause does not need to be established. Therefore, I don't think the officer's testimony is needed in this case, and I don't think that ... the issue of whether [Officer Rago] made a request for a blood draw is being used to prove the truth of the matter asserted in this case. I don't think it's hearsay. 1 think this witness can testify as to what he heard that a request was made for a blood draw and that the blood will be allowed ... under those set of facts....”
Sweet's counsel stipulated to the foundation for and the results of the blood test reserving his objections concerning Shaver's testimony.
The court found Sweet guilty of count one (.08 or higher) DUI but not guilty of the alternative count (incapable of safely operating). The court informed defense counsel that it would be willing to reconsider its decision to allow Shaver to testify about the request for the blood draw, indicating counsel could present any relevant caselaw on the issue in advance of sentencing.
Sweet's trial counsel subsequently filed a motion to suppress the testimony in issue and to dismiss the count upon which Sweet was convicted. The State responded, and the matter was argued at sentencing. Sweet's motion was overruled, and he was sentenced to 12 months in jail but granted probation upon condition of service of 90 days.
Sweet filed a timely notice of appeal.
Sweet first makes an evidentiary argument contending evidence as to the seizure and testing of his blood should not have been admitted into evidence because the State failed to produce the proper witness and evidence to show substantial compliance with the implied consent advisory requirements.
When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Once relevance is established, the district court must then apply the statutory rules controlling the admission and exclusion of evidence. These statutory rules are treated either as a matter of law or as an exercise of the district court's discretion, depending upon the rule in question. Therefore, the standard of review that is applicable on appeal will depend upon which rule the court applies to determine the admissibility of the evidence at issue. 288 Kan. at 383.
This court's review of Shaver's testimony is limited based on the objections and arguments made by Sweet before the district court. A party must make a contemporaneous and specific objection to the admission of evidence in order to preserve the issue for appeal. K.S.A. 60–404; State v. Harris, 293 Kan. 798, 813, 269 P.3d 820 (2012). A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011).
Sweet's contention on appeal is simply that the district court committed reversible error in admitting Shaver's testimony to prove the necessary procedures were followed to allow the blood draw and admissibility of the test results. Sweet does not contest the relevancy of Shaver's testimony but at the district court objected to it as being hearsay and resulting in lack of foundation for the draw and admissibility of the blood test results.
On appeal, the hearsay issue is only mentioned in the conclusion, but Sweet contends the necessary foundation is missing and suggests that the evidence as presented does not result in “substantial compliance” with the provisions of K.S.A.2009 Supp. 8–1001(k), which states that “[b]efore a test or tests are administered under this section, the person shall be given oral and written notice” of various information. See Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988) (“To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.”).
The State argues trial counsel objected on the basis of hearsay and lack of foundation and Sweet makes a lack of “substantial compliance” argument on appeal which should result in us not considering this issue on appeal. See State v. McCaslin, 291 Kan. at 707. While the hearsay objection is only mentioned, but not briefed, and might be deemed abandoned, State v. Brown, 272 Kan. 843, Syl. ¶ 1, 35 P.3d 910 (2001), the foundation and substantial compliance arguments are sufficiently intertwined that we will consider the merits of Sweet's appeal.
Sweet's argument is based on the wording of K.S.A.2009 Supp. 8–1001(b) stating: “A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a)....” And, further, based on the wording of K.S.A.2009 Supp. 8–1001(k) which states that “[b]efore a test or tests are administered under this section, the person shall be given oral and written notice....” Based on these two subsections, Sweet contends that only the law enforcement officer (Officer Rago in this case) who gave him the oral and written notice can testify at trial as to the “substantial compliance” with all of the requirements of K.S.A.2009 Supp. 8–1001.
Sweet notes the notice provisions are mandatory and must be sufficient to advise the party to whom it is directed of the essential provisions of the statute, but he does not cite any caselaw or point to any language in K.S.A.2009 Supp. 8–1001 to support his argument.
The State more persuasively contends that K.S.A.2009 Supp. 8–1001 does not establish any parameters, limitations, or requirements as to who is allowed to testify at trial. Sweet purports to rely on the lengthy statute but does not point to any language located therein which supports his argument. We have reviewed the provisions of K.S.A.2009 Supp. 8–1001 and do not find any language therein which supports Sweet's arguments and limits trial testimony to only the law enforcement officer who gave the required oral and written notice.
One of our basic tenants of statutory construction is “[w]hen a statute is plain and unambiguous, an appellate court ... will not read into the statute something not readily found in it.” State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Sweet makes no argument that he was not given the required and necessary statutory notices and information before the blood draw was made. His argument that only Officer Rago could testify to show substantial compliance with the provisions of K.S.A.2009 Supp. 8–1001 is rejected. There was substantial competent evidence presented to the trial court which properly admitted the evidence of the blood test and based on the defendant's stipulation supported the guilty finding.
Out of an abundance of caution as to whether we are required to consider the hearsay question, it is briefly considered. It is clear that Shaver's testimony regarding all the statements and actions of Officer Rago were not offered to prove the truth of the matter asserted as required by K.S.A. 60–460. “If a statement is offered not to prove the truth of the matter asserted but to prove that the statement was made, it is not hearsay. [Citation omitted.] ‘If relevant, such a statement is admissible through the person who heard it.’ “ State v. Race, 293 Kan. 69, 76, 259 P.3d 707 (2011) (quoting State v. Harris, 259 Kan. 689, 698, 915 P.2d 758 [1996] ); see also State v. Reynolds, 230 Kan. 532, 537, 639 P.2d 461 (1982). Shaver's testimony was properly admitted.
There is no merit to Sweet's second argument. He suggested he was in such a physical condition that he could not understand the DC–70 notices he was given. He argues: “The advisory requirement would be meaningless if it could be satisfied by giving it to a person who was unconscious or otherwise physically incapable of comprehending it.”
The plain language of K.S.A.2009 Supp. 8–1001(r) states: “It shall not be a defense that the person did not understand the written or oral notice required by this section.” Further, the evidence showed Sweet understood the process. He asked for an attorney, gave his name, and responded to the EMS and hospital personnel.
Affirmed.