State v. Claerhout
| Decision Date | 06 December 2019 |
| Docket Number | No. 115,227,115,227 |
| Citation | 453 P.3d 855 |
| Parties | STATE of Kansas, Appellee, v. Jeremy CLAERHOUT, Appellant. |
| Court | Kansas Supreme Court |
Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
Kendall S. Kaut, assistant district attorney, argued the cause, and Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Driving while intoxicated, Jeremy M. Claerhout caused the death of another driver in a rear-end collision. He was convicted of reckless driving and second-degree murder for unintentional but reckless homicide. A divided panel of the Court of Appeals affirmed the conviction, and this court granted review on all issues for which review was sought.
The facts underlying the legal issues in this case are essentially undisputed.
On the afternoon and evening of January 11, 2015, Claerhout and two friends visited several bars in Olathe, Kansas. All three men consumed beers and cocktails at each of the bars, and, based on his own recollections and the testimony of bartenders, it is estimated that Claerhout consumed approximately five 12-ounce beers, four 24-ounce beers, one 32-ounce beer, and one or two vodka cocktails that afternoon and evening. After about an hour at the third bar, the three men got into Claerhout's black Ford F-150 pickup truck and headed back toward a bar they had visited earlier. Claerhout was driving.
A short time later, a witness standing outside her place of employment saw a white car drive by; a few seconds later she saw a black Ford truck go by at a high rate of speed, its engine revving and the tires spraying water in the rain. Ten to 15 seconds afterwards, she heard a loud impact sound, which prompted her to call 911. Another witness, who was stopped at an intersection, saw a white Mazda propelled past the intersection at approximately 90 miles per hour out onto the right side of the grassy shoulder, hit and break a cable pole, proceed at least another 100 yards, and come to a stop upon colliding with an iron fence on the other side of the street. She saw a black pickup truck approaching from behind and at the same speed as the Mazda; it then slowed to a stop. She also called 911.
Police and paramedics found the Mazda smashed into a wrought iron fence. The driver was wearing his seatbelt, and the airbags had deployed. The driver's seat was broken off its track and had slid backwards, and the driver was unconscious, on the dashboard and facing the roof.
The front of the truck was damaged, and a piece from the rear end of the Mazda was stuck in the front end of the truck. The three occupants of the truck all told police that they did not know what had happened. Claerhout had bloodshot, watery eyes and the odor of alcohol on his breath, and he was slurring his words. He was smoking a freshly lit cigarette, which officers asked him to extinguish. He put out the cigarette but then lit another one and continued to smoke it after being asked to put it out. He said he had no idea what happened. Police performed walk-and-turn and one-leg-stand field sobriety tests on him, which he failed. He was arrested and taken to a police station, where an Intoxilyzer 8000 breath test was administered at 11:30 that night. The breath sample indicated a blood alcohol content of .211, more than twice the legal limit of .08.
The accident took place in a mixed residential and office area where the speed limit was 40 miles per hour. Based on tracks on the grass and the roadway as well as damage to objects along the way, Officer John Moncayo reconstructed what happened before and after the collision. There was no braking by either vehicle before the collision. The truck struck the Mazda at a slight angle on the rear passenger side, propelling the Mazda onto the grass, where it struck and sheared off a medium-sized tree at its base. The car continued forward and struck a utility pole, breaking it in half and leaving the top half of the pole suspended by the cable line. The car then swerved back onto the road, crossed the center line, struck the curb, went over a small hill, and stopped when it struck a wrought iron fence. In all, the Mazda traveled some 848 feet after the impact.
The driver, Christopher Willdermood, was taken to a nearby hospital, where imaging showed significant bleeding in the back of his brain. He was declared brain-dead on February 14, 2015. Blood analyses showed no signs of narcotics or alcohol in his body. The cause of death was listed as complications from a blunt injury to the head.
The State charged Claerhout with second-degree murder for unintentional but reckless homicide or, in the alternative, involuntary manslaughter while driving under the influence of alcohol, and an additional count of reckless driving. The defense theory at trial was that Claerhout was highly intoxicated and incapable of safely driving at the time of the accident, and he therefore was guilty of involuntary manslaughter but not guilty of second-degree murder.
The jury entered a verdict of guilty on the count of second-degree murder, guilty on the count of involuntary manslaughter while driving under the influence of alcohol, and guilty of the count of reckless driving. Because the jury found Claerhout guilty of both alternative homicide charges, the trial court vacated the conviction on the count of involuntary manslaughter while driving under the influence. The court sentenced him to a standard term of 117 months for second-degree murder and a concurrent 30-day sentence for reckless driving.
A panel of the Court of Appeals affirmed the conviction, with one judge dissenting. State v. Claerhout , 54 Kan. App. 2d 742, 406 P.3d 380 (2017) This court granted review on all issues raised in the petition for review.
In 2010, Claerhout entered into a diversion agreement subsequent to an arrest for driving while intoxicated. According to the statements of counsel at a motion to suppress, the arrest was made after a stop for a missing tail light; there was no indication of dangerous driving and no accident was involved. At trial, the State was allowed to introduce the diversion agreement, without explanation, for the purpose under K.S.A. 2016 Supp. 60-455(b) of proving knowledge that driving while intoxicated is dangerous. Claerhout argues that this evidence should not have been introduced at all, and the manner in which it was introduced defeated the statutory basis for admitting it.
K.S.A. 2018 Supp. 60-455(a) makes evidence of a prior crime or civil wrong inadmissible for the purpose of proving a disposition to commit such an act on another occasion. K.S.A. 2018 Supp. 60-455(b) allows such evidence of a prior crime or civil wrong when it is "relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
When the State seeks to introduce evidence of prior bad conduct under K.S.A. 60-455, that evidence must be material, and its probative value must outweigh its potential for producing undue prejudice. State v. Gunby , 282 Kan. 39, 48, 144 P.3d 647 (2006). Whether such evidence is material—meaning that the evidence has some real bearing on the decision in the case—is reviewed independently, without deference to the district court. Whether the evidence is relevant to prove a disputed material fact is reviewed only for abuse of discretion. Whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant is also reviewed only for abuse of discretion. State v. Haygood , 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018).
A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Boysaw , 309 Kan. 526, 539, 439 P.3d 909 (2019).
The jury found Claerhout guilty of both reckless second-degree murder and involuntary manslaughter. Claerhout contends the diversion agreement was improperly introduced in order to prove recklessness and, without it, the jury might have convicted him of only the involuntary manslaughter charge.
K.S.A. 2018 Supp. 21-5403(a)(2) defines reckless second-degree murder as the killing of a human being committed "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." This crime is a severity level 2 person felony. K.S.A. 2018 Supp. 21-5403(b)(2).
Advocating outside the presence of the jury for admitting the diversion agreement, the prosecutor stated the purpose of the diversion evidence was to prove to the jury that Claerhout had been educated to the reality that driving while intoxicated was dangerous and his decision to drive while intoxicated was therefore reckless.
The court agreed with the State's basis for admitting the evidence, stating that the diversion agreement would demonstrate that Claerhout "should be on notice as to what the problems of drinking and driving are based upon his prior experience." The Court of Appeals agreed, holding that the diversion agreement was relevant to show Claerhout's heightened knowledge of the risks of driving under the influence. 54 Kan. App. 2d at 750-51, 406 P.3d 380.
The Tenth Circuit Court of Appeals has considered a similar question and agreed that evidence of prior drunk driving is admissible as tending to show knowledge of the dangers of driving while intoxicated:
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