State Of Kan. v. Shadden

Citation235 P.3d 436
Decision Date09 July 2010
Docket Number457.,No. 97,97
PartiesSTATE of Kansas, Appellee,v.Richard SHADDEN, Appellant.
CourtUnited States State Supreme Court of Kansas



[235 P.3d 803]

Syllabus by the Court

1. Ordinarily an appellate court will not consider an issue on appeal not raised before the district court.

2. The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.

3. A protective order issued on a motion in limine may be granted when a district court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial; and (2) The pretrial ruling is justified as opposed to a ruling during trial because the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; the consideration of the issue during the trial might unduly interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. In determining if a pretrial ruling is justified a district court should weigh whether the court will be in a better position during trial to assess the value and utility of evidence and its potential prejudice.

4. A district court ruling on the first motion in limine factor- i.e., the admissibility of evidence-and an appellate court reviewing that ruling apply a multistep analysis. Under the multistep evidentiary analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. In the third step of the analysis, a district court must apply the applicable rule or principle. The appellate court's standard of review of this third step varies depending on the rule or principle that is being applied. Some rules or principles grant the district court discretion, while others raise matters of law. Finally, an analysis under K.S.A. 60-445 may be required, depending on the issue and parties' arguments. Under that statute, a district court may exclude evidence if its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had a reasonable opportunity to anticipate that such

[235 P.3d 804]

evidence will be offered. This analysis is reviewed under an abuse of discretion standard.

5. The second prong of the motion in limine test-whether a pretrial ruling is justified instead of a ruling during the trial-rests in the discretion of the district court. Hence, the district court's ruling is reviewed for an abuse of discretion.

6. K.S.A. 60-456 generally governs the admissibility of all opinion testimony, regardless of the subject matter of the testimony or of the categorization of the witness as lay or expert.

7. Under K.S.A. 60-456(a), a layperson is allowed to offer opinions or inferences as the judge finds may be rationally based on the perception of the witness and are helpful to a clearer understanding of the witness' testimony.

8. Under K.S.A. 60-456(b), an expert's opinion is admissible if it is (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.

9. Under K.S.A. 60-456(d), testimony in the form of opinions or inferences is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.

10. On appeal, a district court's application of K.S.A. 60-456 is reviewed under an abuse of discretion standard.

11. If an opinion is based on scientific methods or procedures and is offered for admission, the offering party must satisfy the test enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and adopted in Kansas in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). The Frye test requires a showing that the basis of a scientific opinion is generally accepted as reliable within the expert's particular scientific field.

12. The Frye test applies only to testimony based on a scientific method or procedure. It does not apply to pure opinion testimony, which is an expert opinion developed from inductive reasoning based on the expert's own experiences, observations, or research.

13. On appeal, while the admission of expert testimony

[235 P.3d 805]

is generally subject to an abuse of discretion standard, the determination of whether the Frye test was correctly applied is subject to de novo review.

14. Both lay and expert witnesses are permitted to testify as to their observations of an automobile driver's acts, conduct, and appearance and also to give opinions on the driver's state of impairment based on those observations.

15. Opinion testimony based on objective observations regarding an automobile driver's coordination, balance, and mental acuity is not scientific evidence.

16. Opinion testimony asserting a relationship between performance on field sobriety tests and a specific blood alcohol content or concluding performance on a field sobriety test establishes a probability that a driver's blood alcohol content is above legal limits is inadmissible unless an appropriate scientific opinion foundation has been laid.

17. If a witness does not opine that there is a relationship between performance on field sobriety exercises and specific levels of blood alcohol content, the witness' mere use of terms like “test,” “points,” “pass,” or “fail” when referring to field sobriety exercises does not lend scientific credibility to the results.

18. Under K.S.A. 60-261, the statutory harmless error test, no error in either the admission or the exclusion of evidence is grounds for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to be inconsistent with substantial justice. An appellate court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

19. The statutory harmless error test- i.e., the determination of whether substantial justice has been done and whether an error affirmatively caused prejudice to the substantial rights of a party-requires examination of the trial record as a whole, not just examination of the error in isolation.

20. A contemporaneous and specific objection must be made to all evidentiary claims-including those alleging prosecutorial misconduct-to preserve the issue for appellate review.

[235 P.3d 806]

21. When an appellate court reviews a claim of prosecutorial misconduct involving the improper elicitation of testimony, the court must first consider whether the questions posed were impermissible. If the questions were impermissible, the reviewing court then determines whether the misconduct constituted plain error; that is, whether the evidence prejudiced the jury against the defendant and denied the defendant a fair trial.

22. In making the assessment of whether a prosecutor's misconduct in introducing evidence is plain error, an appellate court must consider: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct exhibited ill will toward the defendant by the prosecutor; and (3) whether the misconduct may be deemed harmless in light of the evidence of guilt presented at trial. None of these three factors is individually controlling. Where the first two factors weigh against the prosecutor, a reviewing court may find the misconduct harmless only when both the statutory and constitutional harmless error tests are satisfied.

23. Even if a constitutional issue arises because of the erroneous admission of evidence, K.S.A. 60-404 requires a party to lodge a timely and specific objection to the alleged error at trial in order to preserve the issue for appeal.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

Richard Shadden appeals his conviction for driving under the influence of alcohol (DUI) to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A.2009 Supp. 8-1567(a)(3). During the trial, a law enforcement officer testified Shadden failed the National Highway Traffic Safety Administration's (NHTSA) standardized walk-and-turn test and his

[235 P.3d 807]

failure meant there was a 68 percent chance that his blood alcohol content (BAC) was more than .10. On appeal, Shadden argues this testimony presents scientific opinion evidence that is not admissible without the State laying the foundation required in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which was adopted in Kansas in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). Shadden further argues that words like ‘tests' or other related terms such as pass, fail, or points” should not be allowed in an officer's testimony or the State's arguments because the words add scientific credibility to the officer's opinion.

We agree that the Frye test must be met before admitting evidence establishing a relationship between a NHTSA test failure and a specific measurement of a driver's BAC. In this case, the State did not lay the necessary foundation, and the district court erred in admitting the officer's opinion that 68 percent of the time a person exhibiting two clues has a BAC of more than .10. Nevertheless, we disagree that it was error...

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    • August 6, 2021 Standard of Review and Basic Legal Principles Admission of evidence involves several legal considerations. See State v. Shadden , 290 Kan. 803, 817-18, 235 P.3d 436 (2010). The district court must first determine whether the evidence is relevant. All relevant evidence is admissible unle......
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    ...essentially presented evidence of the syndrome as it related to A.H. without subjecting it to the Frye test. See State v. Shadden, 290 Kan. 803, 818–19, 235 P.3d 436 (2010) (K.S.A. 60–456 governs admissibility of all opinion testimony, but opinions based on scientific methods or procedures ......
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