City of Colby v. Cranston, 82,805.

• Decision Date: 12 May 2000
• Docket Number: No. 82,805.,82,805.
• Citation: 7 P.3d 300,27 Kan. App.2d 530
• Parties: CITY OF COLBY, KANSAS, Appellee, v. ROSS R. CRANSTON, Appellant.
• Court: Kansas Court of Appeals

27 Kan. App.2d 530

7 P.3d 300

CITY OF COLBY, KANSAS, Appellee, v. ROSS R. CRANSTON, Appellant.

No. 82,805.

Court of Appeals of Kansas.

Opinion filed May 12, 2000.

Michael S. Holland and Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

Michael D. Irvin, special prosecutor for the City of Colby, of St. Marys, for appellee.

Before ELLIOTT, P.J., BEIER, J. and PADDOCK, S.J.

BEIER, J.:

Ross R. Cranston was convicted in the Municipal Court of Colby, Kansas, for driving under the influence, obstruction of legal process, and failure to maintain a single lane in violation of the Colby Municipal Code. On appeal to the district court, a jury found him guilty of the same offenses. On subsequent motion, the district court vacated the conviction for obstruction of legal process.

On appeal, defendant raises three issues: (1) Did the district court err by failing to give his proposed jury instruction? (2) Was there sufficient evidence to support his conviction of driving under the influence? (3) Did the trial court err in admitting hearsay testimony in violation of his Sixth Amendment right of confrontation? We have considered each of these issues and affirm.

The essential facts are these: On July 25, 1996, defendant was pulled over at 12:35 a.m. after a Colby police officer observed defendant's vehicle make a wide left turn, drift over the line dividing two southbound lanes and suddenly jerk back at least three times, and drift over the fog line onto the right shoulder and then jerk back.

Defendant admitted to the officer he had consumed "a couple of beers," and the officer noticed that defendant's eyes were bloodshot and glassy and that he smelled of alcohol. A back-up officer arrived and activated a tape recorder. The tape recorder captured a later exchange when defendant refused to take field sobriety tests and struggled with the officers, and his wife and passenger, Dana Cranston, leaned out of the driver's side window and yelled at him to cooperate. Defendant was ultimately taken to the station and tested. At 1:58 a.m., his breath alcohol concentration was measured at .129, well in excess of the statutory limit of .08.

Jury Instruction

In considering defendant's first issue regarding his requested jury instruction, we are

"required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]" State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).

The district court gave the following instruction from PIK Crim. 3d 52.13 as Instruction No. 6: "You must not consider the fact that the defendant did not testify in arriving at your verdict."

Defense counsel objected to this instruction and requested the following instruction:

"It is the constitutional right of a defendant in a criminal trial that he may not be compelled to testify. The decision as to whether he should testify is left to the defendant acting on the advice and assistance of his attorney. You must not draw any inference of guilt from the fact he did not testify, and this fact must not be discussed by you or enter into your deliberations in any way. In deciding whether or not to testify, a defendant may choose to rely on the state of the evidence or upon the failure, if any, of the prosecution to prove every essential element of the charge against him."

At trial, defendant argued Instruction No. 6 was constitutionally inadequate to inform the jury that he could not be compelled to testify. The district court overruled the objection. Although the remainder of the instructions given at trial included the concept of the State's burden of proof, they nowhere stated that defendant could not be compelled to testify or that he had a constitutional right not to testify.

On appeal, defendant argues that the Fifth Amendment required the district judge to give his requested instruction to ensure the jury understood that he could not be compelled to speak and that his silence could not be used against him. Defendant relies on the United States Supreme Court's decisions in Griffin v. California, 380 U.S. 609, 14 L. Ed 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965), and Carter v. Kentucky, 450 U.S. 288, 67 L. Ed.2d 241, 101 S. Ct. 1112 (1981), as well as the Tenth Circuit's interpretations of those decisions in U.S. v. De Hernandez, 745 F.2d 1305 (10th Cir. 1984), and U.S. v. Gomez-Olivas, 897 F.2d 500 (10th Cir. 1990).

In Griffin, the trial court told the jury that a defendant has a constitutional right not to testify, but the jury could draw adverse inferences from the defendant's failure to explain or deny by his testimony any evidence or facts against him. The Griffin court held that the "comment rule" violated the defendant's constitutional rights, because the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." 380 U.S. at 615.

In Carter, the trial judge refused to give a jury instruction explaining that defendant was not compelled to testify and that his failure to testify could not be used to infer guilt. The Kentucky Supreme Court had ruled that the requested instruction would have required the trial judge to "comment on" the defendant's failure to testify in violation of a statute prohibiting such comment. Carter, 450 U.S. at 295. The Carter court held: "[T]he Fifth Amendment requires that a criminal trial judge must give a `noadverse-inference' jury instruction when requested by a defendant to do so." Carter, 450 U.S. at 300.

In De Hernandez, 745 F.2d 1305, the Tenth Circuit examined Griffin and Carter and expanded upon them, ruling that, when asked, a trial court must not only tell a jury that it can draw no adverse inference from a defendant's silence but that the defendant cannot be compelled to testify. "We ... are of the view ... that for an instruction on this point to be complete it should include the compulsion aspect." 745 F.2d at 1309.

The Tenth Circuit followed up on De Hernandez in Gomez-Olivas, 897 F.2d 500, in which it reaffirmed the dual requirements of De Hernandez and emphasized that the instruction should always be preceded by a defense request. In the absence of such a request, the panel said, a trial judge could torpedo a defendant's conscious tactical decision to avoid any mention of his or her silence in the face of accusation. See 897 F.2d at 502.

The First Circuit also has recognized the distinction between compulsion language and adverse inference language in jury instructions. In U.S. v. Brand, 80 F.3d 560 (1st Cir. 1996), the court was called upon to review an instruction that included compulsion language but excluded adverse inference language. It stated in pertinent part:

"Our question is whether instructing that the government has the burden of proof and that defendant does not have to testify or present evidence adequately communicates that no adverse inferences may be drawn from the fact that he does not testify.... A jury might well think that a defendant's right not to testify means merely that he cannot be called as a witness, leaving it to draw such conclusions from his silence as it felt warranted. An instruction not to consider his failure to testify precisely forbids drawing inferences. [Citation omitted.] Here, however, the court mentioned nothing beyond the defendant's right not to testify or present evidence. Carter v. Kentucky makes clear that, once request for a noadverse-presumption instruction has been made, the `full and free exercise' of the constitutionally guaranteed privilege against self-incrimination requires more than instruction on the right not to testify and to be presumed innocent until proven guilty. [Citations omitted]." (Emphasis added.) 80 F.3d at 567.

This language from Brand makes clear that, like the Tenth Circuit, the First Circuit recognizes the constitutional necessity of instructing the jury on both compulsion and adverse inference, once such instruction has been requested by a defendant.

For its part, the Kansas Supreme Court has not addressed the exact issue before us. Although it has approved the wording of the PIK instruction given here, its decisions have focused on the propriety of giving the instruction without a request or objection from the defendant or when the defendant objected that the instruction would comment impermissibly on his or her silence. See State v. Goseland, 256 Kan. 729, 737-39, 887 P.2d 1109 (1994) (no request or objection; instruction not clearly erroneous); State v. Perry, 223 Kan. 230, 236, 573 P.2d 989 (1977) (instruction given over defendant's objection; not prejudicial under facts of case but preferable that trial courts not give instruction when only one defendant on trial and defendant objects). See also Lakeside v. Oregon, 435 U.S. 333, 340-41, 55 L. Ed.2d 319, 98 S. Ct. 1091 (1978) (giving of adverse instruction over defendant's objection does not violate privilege against self-incrimination). These cases simply have not gone to the next step in the analysis, recognizing both the compulsion and adverse inference components in the instruction considered in Carter.

Although we are not bound to follow the federal circuit courts in their interpretations of United States Supreme Court precedents, we find the reasoning of the Tenth and First Circuits persuasive and conclude that, when presented with the opportunity, our Supreme Court would see the issue as we do. See Harder v. Towns, 1 Kan. App.2d 667, 669, 573 P.2d 625 (1977), rev. denied 225 Kan. 844 (1978). As Brand put it:

"The Fifth Amendment guarantees a criminal defendant both the right to remain silent and that no adverse inferences may be drawn from

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