City of Overland Park v. Cunningham

• Decision Date: 29 October 1993
• Docket Number: 69,014,Nos. 68,899,s. 68,899
• Citation: 861 P.2d 1316,253 Kan. 765
• Parties: CITY OF OVERLAND PARK, KANSAS, Appellant, v. Mitchell CUNNINGHAM and Gary Dahn, Appellees.
• Court: Kansas Supreme Court

Page 1316

861 P.2d 1316

253 Kan. 765

CITY OF OVERLAND PARK, KANSAS, Appellant, v. Mitchell CUNNINGHAM and Gary Dahn, Appellees.

Nos. 68,899, 69,014.

Supreme Court of Kansas.

Oct. 29, 1993.

Syllabus by the Court

1. A question reserved must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law. A question reserved will not be considered on appeal merely to demonstrate errors of a trial court in rulings adverse to the State.

2. In order to reserve a question for presentation on appeal, the State must make proper objections or exceptions at the time the order or ruling complained of is made or the action objected to is taken.

3. The general rule is that an objection must state specifically the grounds of the objection.

4. A trial judge has considerable discretion in evidentiary rulings concerning foundation evidence.

5. The general rule in Kansas is that a contemporaneous objection must be made and it should be specific enough that the trial judge can rule intelligently upon the objection, and the specific contemporaneous objection must be made known to the opposing counsel when the objection is lodged.

Whether an adequate evidentiary foundation was laid is a question of fact for the trial court and largely rests in its discretion. So long as there is substantial competent evidence to support the finding, it will not be disturbed on appeal.

Steven A. Jensen, Asst. City Atty., argued the cause, and Sue A. Dickey, Asst City Atty., was with him on the brief for appellant.

No appearance by appellees.

ABBOTT, Judge:

This is an appeal by the City of Overland Park. The issue is whether the trial judge erred by refusing to admit into evidence the breath alcohol concentration (BAC) test results in two separate DUI trials.

In separate cases, Mitchell Cunningham and Gary Dahn were convicted in the Overland Park municipal court of operating a motor vehicle while under the influence of alcohol and of speeding. Cunningham and Dahn appealed their convictions to the district court. The cases were tried de novo to the bench and, in both cases, different pro tem trial judges sustained the defendants' insufficient foundation objection to admission of the BAC test results. Both Cunningham and Dahn were acquitted of operating a motor vehicle while under the influence of alcohol.

The City of Overland Park appealed in both cases, alleging it reserved questions for appeal pursuant to K.S.A. 22-3602(b)(3). The question it seeks to present on appeal is whether an objection for "lack of foundation" is sufficient when a request for a more specific objection is made. In addition, the City argues it introduced evidence meeting the foundation elements required for admissibility of the BAC test results and the trial court improperly enlarged the scope of the foundation required for the admission of the BAC test results.

In State v. Crozier, 225 Kan. 120, 123-24, 587 P.2d 331 (1978), we summarized a long line of cases dealing with questions reserved, stating:

"The third situation where the prosecution is afforded an appeal after final judgment in a criminal case is upon a question reserved by the prosecution provided for in K.S.A.1977 Supp. 22-3602(b )(3). It has been held that a question reserved must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law. State v. Glaze, 200 Kan. 324, 436 P.2d 377 (1968). A question reserved by the state will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the state. State v. V.F.W. Post No. 3722, 215 Kan. 693, 695, 527 P.2d 1020 (1974); State v. Chittenden, 212 Kan. 178, 510 P.2d 152 (1973). No formal procedural steps are required by K.S.A.1977 Supp. 22-3602(b ) to appeal on a question reserved. All that is necessary for the state to do to reserve a question for presentation on appeal to the supreme court is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken. State v. Marek, 129 Kan. 830, 834, 284 Pac. 424 (1930)."

All the State must do to reserve a question for appeal, then, is lay the same foundation for appeal that a defendant is required to lay.

In the Dahn trial in the district court, counsel for the City voluntarily told the trial court she would not inquire further and made no effort to present the evidence the trial judge stated was necessary to lay a proper foundation for admission of the BAC test. Counsel failed to properly reserve the question for appeal.

Based on the record before us, we dismiss the Dahn appeal. That is of no significance because the exact issues are raised in the Cunningham appeal.

We do comment that both appeals involve acquittals. An acquittal is final and not appealable; however, the State may appeal a question reserved in those special circumstances when the question reserved calls for an answer which is both of statewide interest and vital to a correct and uniform administration of the criminal law. State v. Crozier, 225 Kan. at 122-23, 587 P.2d 331. At first glance, it would appear that ample case law exists concerning laying a proper foundation for the admission of BAC test results. However, we have never written on the main issue reserved in this case, and it would be difficult, if not impossible, for the issue concerning a request for a more specific objection to foundation evidence to come before this court other than by a question reserved. We therefore accept the question reserved.

The City contends a general objection to foundation is insufficient if a request for a more specific objection has been made, as the City maintains happened in the Cunningham case. The City attempted to admit evidence of the defendant's BAC test results through testimony, exhibit, or both. The defendant objected on the ground of insufficient foundation, and the objection was sustained. Because it believed the foundation requisites had been satisfied, the City asked the trial judge to require the defendant to state with specificity the alleged defect in the City's foundation for admitting BAC test results. The trial judge refused to do so.

The trial judge did have defense counsel "write out such specific objections" and hand them to the trial judge. The trial judge stated, "I'll make my ruling based on his written objections." The trial judge did view the written objections when they were submitted and advised there were four objections submitted and stated: "They're actually in excess of what I was considering and I think they're valid objections. They're still sustained at this time." The City was not given a copy of the written objections and was not told what the written objections were until both sides had rested.

The propriety of receiving written objections and considering them in court rulings is not before us, but we feel compelled to comment on the use of such a procedure. Except as authorized by law, a judge is forbidden to initiate or consider ex parte or other communications concerning a pending or impending proceeding. Rule 601, Canon 3 A(4) (1992 Kan.Ct.R.Annot. 348). A judge clearly violates the ex parte communication prohibition if he considers an ex parte communication from a party or lawyer in a pending proceeding or initiates such communication.

In the case of In re Dekle, 308 So.2d 5 (Fla.1975), a Florida Supreme Court Justice received a legal memorandum from the attorney for one party. The legal memorandum had not been filed with the court, and other counsel in the case were not aware the memorandum had been furnished to the justice. The justice used the memorandum in preparing his opinion. The court said that even if there is no actual harm to the other party, a judge who intentionally commits an act which the judge knows or should have known is prohibited is guilty of misconduct. The court reprimanded Justice Dekle and added that removal from office would be proper if there was a clear showing of corrupt motive or a deliberate wrong. As noted above, this issue is not before us at this time, but we include it for the purpose of instructing trial judges that such a procedure is not to be used.

The City maintains "[i]t is settled law that general foundation objections are not favored in law and should not be allowed." Much of the authority the City cites does not discuss foundation objections specifically, but addresses general versus specific objections. The City errs in equating an objection alleging insufficient foundation with a general objection. See 1 McCormick on Evidence § 52, p. 206 (4th ed. 1992) ("Examples of general objections are 'I object,' or objections on the ground that the evidence is 'inadmissible,' 'illegal,' 'incompetent,' or is not proper testimony for the jury; or an objection 'on all the grounds ever known or heard of.' One of the most overworked forms is an objection on the ground that the evidence is 'incompetent, irrelevant and immaterial.' "); see also Osborn v. Woodford Bros., 31 Kan. 290, 296, 1 Pac. 548 (1884) (unless the objecting party states a reason, a trial court should not sustain an objection to all of a particular witness' testimony); Johnston v. Clements, 25 Kan. 376, Syl. p 4 (1881) (a trial court will not entertain an objection based upon " 'all the grounds ever known or heard of' "). An objection for lack of sufficient foundation is considered a specific objection.

"The general rule is, that objections to evidence must state specifically the grounds of the objection." Stout v. Baker, Sheriff, 32 Kan. 113, Syl. p 1, 4 Pac. 141 (1884). What remains of the City's contention is how specific must a specific objection be.

"Endless cases discuss the need for specific objections and the inapplicability of a wrong objection which has been urged. However, the cases are scarce which attempt to define how specific and detailed an objection must be when the objection is...