State v. Betts

Decision Date02 March 1974
Citation519 P.2d 655,214 Kan. 271
PartiesSTATE of Kansas, Appellee, v. Paul Dalton BETTS, Appellant. No 47246.
CourtKansas Supreme Court
Syllabus by the Court

1. In a criminal case the test of the sufficiency of evidence on appeal is whether there was a reasonable inference of guilt to be drawn by the jury, not whether the evidence establishes guilt beyond a reasonable doubt.

2. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court.

3. In determining whether evidence of a driver's intoxication after an accident is admissible for the purpose of proving his condition at the time of the accident, a trial court should consider not only the length of time between the accident and the evidence of intoxication but all other testimony relevant to such an issue, such as testimony that prior to the accident the driver seemed to exercise a lack of control of his vehicle or that he had been seen drinking prior to the accident, and other such relevant testimony as would guide the trial judge in rendering his decision.

4. Contributory negligence of the deceased is not a defense to a criminal charge of homicide.

5. In a prosecution for involuntary manslaughter arising out of the operation of an outomobile while under the influence of intoxicating liquor it is held that the trial court did not err in the admission of evidence, in submitting the case to the jury, or in the instructions given.

J. Stephen Nyswonger of Braun & Nyswonger, Garden City, argued the cause and Lelyn J. Braun, Garden City, was with him on the brief for appellant.

Harrison Smith, Co. Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

FOTH, Commissioner:

Appellant Paul Dalton Betts was convicted of involuntary manslaughter on a charge that while driving his automobile under the influence of intoxicating liquor he struck and killed a pedestrian. His primary contention on appeal is that the state's only evidence of his intoxication was too remote in time to be admissible or to provide the basis for a reasonable inference of intoxication at the time of the accident. He stipulated before trial that he was driving the automobile that struck the deceased, and that she died as a result.

The deceased, Reiko Iwatani, was a musician with the Mitch Miller orchestra. We are told that she was a citizen of Japan. The orchestra had given a concert in Garden City on the evening of October 19, 1972, and after the concert she and other members of the orchestra returned to their quarters at the Continental Motel on the south side of Jones Avenue, a four-lane street carrying U. S. Highway 50. Late in the evening she and Mary Lou Steppacher, another musician, went out for a midnight snack at the Flamingo Inn, located a little west of the Continental and across the street to the north.

Shortly after midnight the two headed back toward their motel, and were joined in the Flamingo parking lot by a third muscician, James Boyd. The three of them crossed Jones Avenue to the south edge and, because there were no sidewalks and the grass was wet from an earlier rain, proceeded east in the street near the curb. They were, therefore, walking along the right edge of the street, with eastbound traffic.

Mr. Boyd testified that as they walked he regularly looked over his shoulder for approaching cars. Whether he saw appellant's car approaching does not appear in the record. Miss Steppacher also kept a lookout for traffic; she saw none coming from the east, but did see appellant's car coming up behind them. When she saw it 'veering into the outside lane of traffic' she tried to warn her companions, but was too late. She heard a thud, and later realized that Mrs. Iwatani had been hit.

A third witness to the incident was Ronald Brown, yet another member of the orchestra. He was standing in the Flamingo parking lot when he saw the appellant's car approaching. To him the car seemed to be 'bumping along the curb.' When he heard the screaming and saw the commontion he called an ambulance.

Both Boyd and Brown testified that appellant's car appeared to be traveling at a lawful rate of speed before the impact. (The speed limit dropped from 40 to 30 m.p.h. at about this point.) Boyd added that the car didn't appear to speed up afterward or speed away. Neither did it stop.

Officer Robert Seymour of the Garden City police department was on patrol when he received the accident call at about 12:16 a.m. on October 20; he arrived at the scene at 12:17. After completing his on-the-scene investigation he commenced a street-by-street search for the light colored station wagon which witnesses described as the fatal instrumentality. At about 1:40 he received a call that the car had been located, and proceeded to an apartment that turned out to be appellant's.

There he joined Sergeant James Toner of the police department and Officer Cook of the Finney county sheriff's office. After a cursory examination of the station wagon the three officers approached appellant's apartment at about 1:50 or 1:55 a.m. Appellant's daughter answered the door, and appellant invited the officers in. They 'advised him of his rights' and asked him to dress and come down to the police station with them.

Officer Seymour was permitted to testify, over appellant's objection, that he noticed the smell of alcoholic beberage on appellant's breath, that his concentration was impaired, that it took him an abnormally long time to tie his shoes, that his speech was slurred, and that he seemed to be 'incoherent as to what was really going on.' In Officer Seymour's opinion appellant was intoxicated. Later that morning, about 3:00, he again saw appellant at the police station and concluded that at that time 'he was still intoxicated.'

Sergeant Toner also told of going to appellant's apartment, reading him the Miranda warning, and asking him to go to the police station. He described appellant as follows:

'Well, his speech was slurred. He wasn't walking very straight. He had quite a time getting his shoes on, getting them tied, putting his shirt on. He seemed like he didn't know really what was going on about him.'

Asked his opinion of appellant's condition, Sergeant Toner testified, 'I believe the man was drunk.'

The sergeant also told about his police station interrogation of the suspect between 2:15 and about 2:45. Without objection he read to the jury his memorandum of that interrogation:

'Question: 'Were you at the Continental Club that evening?' His answer was 'yes, (sic) left there about quarter of 12:00 midnight.' Question: 'Where did you go then?' Answer: 'Don Farr picked me up some bread for steaks at the Quik Shop and came back about 11:30 or so; I don't know exactly'. Next question: 'What time did you leave for home?' His answer was: 'About quarter of 12:00, about that time. What is this about?' Statement by myself was 'We believe you were involved in an accident we are checking on'. Statement by Mr. Betts: 'I was not involved in any accident tonight. I did not hit any other cars. Go check my station wagon. I didn't hit any other car.' Last question: 'Which way did you go home from the club?' His answer was: 'Highway 50 to Five Points and on down the street that we changed on over to Gardenadale. A Corvette cut me off by the curb when I left.' Question by Betts: 'Where was I involved in this accident?' Answer by myself: 'By the Continental Motel'. Statement by Betts: 'I didn't have an accident by the motel.' Question: 'Were you driving your station wagon tonight?' Answer: 'You bet.' Question: 'No one else drove it except Farr who went to the Quik Shop for bread and returned?' His answer was 'Right'.' (Emphasis added.)

The interrogation was broken off by Captain Richard Rohleder, who arrived at the police station around 3:00 a.m. He had been to the hospital, where he learned that Mrs. Iwatani had died, and to appellant's apartment, where he had removed her motel key from the crevice between the hood and fender of appellant's station wagon. Asked his opinion of appellant's condition the captain replied, 'he wasn't what you call drunk but he had too much to drink in him yet to question him on something that he might not understand too good afterwards.' His opinion was based on numerous previous encounters with appellant, both drunk and sober.

Five of appellant's six points on appeal turn on the probative value to be ascribed to the officers' testimony as to his intoxication: Seymour's at 1:50 and 3:00; Toner's at 1:50; and Rohleder's at 3:00. The accident, it may be recalled, occurred no later than 12:15. His basic contention is that drunkenness one-and-one-half to almost three hours later is too remote to demonstrate drunkenness at the time of the accident. Hence, he argues: (1) he should have had a dismissal at the close of the state's case; (2) the verdict was not supported by the evidence; (3) the evidence of intoxication was erroneously admitted; (4) an instruction on intoxication should not have been given because not based on substantial evidence; and (5) a mistrial should have been declared because of all the foregoing errors.

In analyzing this overall contention it must be borne in mind that, by virtue of a pre-trial oral amendment of the information, appellant was charged with involuntary manslaughter under K.S.A. (1972) Supp. 21-3404:

'Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. . . .'

To sustain its case under this statute it was incumbent on the state to prove two elements: first, an unintentional killing; and second, that appellant was at the time either engaged in the commission of a misdemeanor or was operating his car in a wanton manner. There was no question...

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