In Pearce v. Atwood, 13 Mass. 353, it was said: "But we believe that the Legislature, in the use of the phrase transitory action, had reference to the general common-law division of actions into transitory and local, and not to such actions as, by any particular statute of England, were confined to particular counties."Summary of this case from Burger v. Parker
Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant. Charles A. Peckham, city attorney, for appellee.
Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, for appellant.
Charles A. Peckham, city attorney, for appellee.
PER CURIAM: This appeal arises from Tonalea Pearce's conviction of driving under the influence of alcohol. Pearce was first tried and convicted in municipal court. She appealed and was retried in the district court before a jury, where she was again convicted.
The parties are well acquainted with the facts. Stripped to their essentials, the facts are that Pearce was on her way home from her job as a waitress at a local restaurant and bar shortly after 1 a.m. when her car left the roadway, knocked down a tree, and came to rest in an adjacent yard. At the scene Pearce claimed her brakes had failed. The investigating officer saw no obstruction on the roadway that would have caused Pearce to swerve off the road.
The investigating officer smelled alcohol on Pearce's breath. Pearce admitted to drinking alcohol that night. The officer noted her slurred speech, difficulty communicating, and poor balance and coordination. Pearce was arrested for driving under the influence of alcohol, and a subsequent breathalyzer test showed that she had a blood alcohol concentration of .149.
Pearce contended that her slurred speech, difficulty communicating, and poor balance and coordination were symptoms of the head injury she sustained in the collision with the tree, as well as her diabetic condition. She also contended that when she responded to the officer's questions about drinking or taking drugs, she was referring to two shots of insulin that she took around 10 p.m. that night.
On appeal, Pearce first contends that the district court erred in admitting the results of her breath test without sufficient foundation. “ “Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion. [Citation omitted.] So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.” [Citation omitted.]' “ State v. Rollins, 46 Kan.App.2d 17, 27–28, 257 P.3d 839 (2011), rev. denied 293 Kan. at –––– (2012) (quoting State v. Rohr, 19 Kan.App.2d 869, 870, 878 P.2d 221  ).
Substantial evidence is evidence possessing both relevance and substance which provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007) (citing State v. Luna, 271 Kan. 573, 574–75, 24 P.3d 125  ).
At trial, Officer Jason Poore, who arrested Pearce and administered the breath test, testified that he was trained to use to the Intoxilyzer 8000 breath test machine and was certified to operate it at the time of this incident. The City also introduced into evidence a letter from the Kansas Department of Health and Environment (KDHE) notifying the City's police chief that Officer Poore was certified to administer breath tests on the Intoxilyzer 8000. The DC–27 form served on Pearce also was introduced into evidence. That form contained Officer Poore's certification that “the person who operated the testing equipment was certified by the Kansas Department of Health and Environment to operate such equipment.” When the City asked Officer Poore about the test results, Pearce objected for lack of foundation, arguing that Officer Poore's certification card needed to be admitted into evidence in order to lay a proper foundation for Poore's testimony. The district court overruled the objection and allowed Officer Poore's testimony about the test results.
To assure the reliability of breath test results, the testing equipment, the testing procedures, and the operator of the equipment must be certified. K.S.A.2011 Supp. 8–1002(a)(3). Pearce relies on State v. Rohr, 19 Kan.App.2d at 870, in which the State did not offer into evidence any certification documents. The State presented only the testimony of a police officer. On appeal the court held that the officer's testimony violated the best evidence rule and was hearsay. The court held that admission of the actual certification document was necessary. 19 Kan.App.2d at 872. See State v. Muck, 262 Kan. 459, 465, 939 P.2d 896 (1997).
But in State v. Baker, 269 Kan. 383, 2 P.3d 786 (2000), our Supreme Court later declared that a properly completed DC–27 form is enough to establish a sufficient foundation for admission of breath test results. 269 Kan. at 387.
“[We] hold that in a criminal prosecution, the results of a defendant's blood alcohol test or refusal to take the same will be admissible where the State meets the requirements for admissibility contained in K.S.A.1999 Supp. 8–1001 and 8–1002. The State may seek to establish a foundation for admission through the use of a completed DC–27 form, through competent testimony, or through a combination of the two.” 269 Kan. at 388.
Here, the DC–27 form was introduced into evidence. It was supported by Officer Poore's testimony and a document from KDHE confirming his certification to administer the test. These provided substantial evidence of Poor's qualifications to administer the test. The district court did not abuse its discretion in overruling Pearce's foundation objection and in admitting Officer Poore's testimony regarding the test results.
Pearce also contends that the district court erred in denying her motion for a mistrial after the following exchange between the City prosecutor and Officer Poore:
“Q Okay. And did [Pearce] at any time request that she be allowed to get her own sample?
“A She did not.
“Q Did she at any time request any other medical tests?
“A No, she did not.
“Q And did she ask if she could get medical attention?”
Pearce's counsel interrupted, “I'm going to object to the last two questions and answers, and ask for a mistrial.” At the conference in chambers Pearce's counsel argued that the City was “attempting to convict her by pointing out to the jury that she didn't do these things which might have produced exculpatory evidence, and that's just the same as saying she refused to testify.” The district court sustained Pearce's objection to this testimony and told the prosecutor, “let's not go there.” But the court found that the prosecutor's conduct “certainly doesn't rise to the level of mistrial.” The court stated: “I looked at the question and answers on my real time screen before we came in, and it was so subtle that I could not even anticipate what your argument was going to be, and I suspect the jury wouldn't probably be in any better position than I to have picked up on that.”
On appeal, Pearce only addresses the first question asked of the witness and claims that based upon it and Officer Poore's response, the district court should have declared a mistrial.
K.S.A. 22–3423(1) provides: “The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because: ... (c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
In determining whether a mistrial is necessary, the district court first decides if there is some fundamental failure of the proceeding. If so, the court must decide if it should provide a curative admonition or instruction to the jury. If not, the court must then consider the degree of prejudice in evaluating whether to declare a mistrial. See 292 Kan. at 550.
Pearce relies on State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), in which the prosecutor engaged in four instances of improper conduct. First, he improperly asked a witness, “ ‘Well, we've rested our case, so we've proven that he raped his daughter, kidnapped his daughter and raped her again. You're aware of that, right?’ “ 278 Kan. at 86. Second, in his cross-examination of the defendant he asked, “ ‘[H]aven't you told your wife that you were just going to plead guilty ... ?” 278 Kan. at 87. The Supreme Court found this to be “a highly prejudicial, false, and inadmissible fact that Tosh could not rebut.” 278 Kan. at 88. Third, in closing argument the prosecutor argued that when the defendant attacked the victim's credibility he was raping her again, and he asked why the defendant had requested a jury trial when he had already confessed to the crimes. Fourth, the prosecutor asked in closing argument, “ ‘[I]s there any evidence that it didn't happen?’ “, and asked the jury to protect the victim by convicting the defendant. 278 Kan. at 90.
Pearce relies on the court's criticism in Tosh of the comment in closing argument: “[I]s there any evidence that it didn't happen?” The court found this comment to be an improper attempt to shift the burden of proof to Tosh. 278 Kan. at 92. The Supreme Court agreed with Tosh's criticism that this comment reinforced the adverse effect of the other improper comments. The Supreme Court found that “here the context compounds the error.” 278 Kan. at 92.
In Pearce's case we are not confronted with such a wide array of improper comments and questions. Here, the district court sustained Pearce's objection but refused to grant a mistrial. On appeal, Pearce now bears the burden of showing that the district court abused its discretion in not declaring a mistrial based upon this one question in a 170–page trial transcript. She makes no effort on appeal to do so. The district court followed the protocol set forth in Ward. The court determined that the question was improper and sustained Pearce's objection to it. Pearce's counsel initially considered and then rejected the idea of a curative instruction. The court agreed with Pearce's counsel that a curative instruction would not be appropriate. The court ultimately determined that the prosecutor's conduct did not create a fundamental failure of the proceeding, noting that after hearing the testimony and viewing it in real time on his computer he could not anticipate what Pearce wanted to argue about. The district judge was aware of the level of attentiveness of the jurors while this testimony was taking place. He considered the degree of prejudice to Pearce in evaluating whether to declare a mistrial. The district judge properly applied the law to the facts before him. We find no abuse of discretion in doing so.