State v. Claerhout

• Decision Date: 27 October 2017
• Docket Number: No. 115,227,115,227
• Citation: 54 Kan.App.2d 742,406 P.3d 380
• Parties: STATE of Kansas, Appellee, v. Jeremy CLAERHOUT, Appellant.
• Court: Kansas Court of Appeals

54 Kan.App.2d 742

406 P.3d 380

STATE of Kansas, Appellee,

v.Jeremy CLAERHOUT, Appellant.

No. 115,227

Court of Appeals of Kansas.

Opinion filed October 27, 2017

Meryl Carver–Allmond, of Capital Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Powell and Gardner, JJ.

Gardner, J.:

Jeremy Claerhout appeals his conviction of reckless second-degree murder. His conviction stems from a car crash he caused while driving under the influence (DUI) of alcohol, which resulted in the tragic death of Christopher Willdermood. Claerhout contends that the district court erred in four respects: (1) by admitting his prior DUI diversion agreement into evidence; (2) by allowing a police officer to testify as an expert accident reconstructionist; (3) by not suppressing certain statements he had made to a police officer following the crash; and (4) by not granting his request for an instruction on voluntary intoxication as a defense to reckless second-degree murder. Finding no reversible error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Around 10 p.m., on January 11, 2015, Claerhout caused a car crash while driving under the influence of alcohol. This crash resulted in the death of Willdermood. As a result, the State charged Claerhout with one count of reckless second-degree murder, a severity level 2 person felony in violation of K.S.A. 2014 Supp. 21-5403(a)(2), or alternatively, one count of involuntary manslaughter while driving under the influence, a severity level 4 person felony in violation of K.S.A. 2014 Supp. 21-5405(a)(3). The State also charged Claerhout with one count of reckless driving, a misdemeanor in violation of K.S.A. 8-1566.

Before his trial, Claerhout filed two motions. Claerhout's first motion challenged Officer Matt Misemer's intended testimony as an expert traffic accident reconstructionist based on the rules outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Misemer intended to testify about the speed and braking patterns of Claerhout's Ford F-150 truck and Willdermood's Mazda3 car based on the information he downloaded from each vehicle's airbag control module onto a computer program called Crash Data Retrieval (CDR). This computer program generated the speed and the braking patterns of the vehicles when they collided. The district court determined that Misemer was qualified to testify as an expert accident reconstructionist.

In Claerhout's second motion, he contended that the statements he had made at the scene of the car crash should be suppressed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court denied this motion, finding that although Officer Daniel Ubrik had interrogated Claerhout at the scene of the crash, he had no duty to give Claerhout the Miranda warnings because Claerhout was not yet in custody.

Claerhout also challenged the State's motion to admit his previous DUI diversion agreement into evidence. The district court ruled that the State could admit that agreement to show that Claerhout had acted recklessly with extreme disregard to the value of human life.

During Claerhout's trial, the State presented the testimony of the waitresses who had served Claerhout alcohol the day of the crash, the friends who had been with Claerhout on the day of the crash, the police officers who had responded to the crash, the bystanders who had witnessed the crash, and the doctors who had examined Willdermood. Highly summarized, the evidence established that from around 3 p.m. to 9 p.m. on January 11, 2015, Claerhout had been drinking alcohol at local bars. Based on the testimony of the waitresses who had served him and beverage receipts admitted into evidence, Claerhout had consumed five 12-ounce beers, three 24-ounce beers, one 32-ounce beer, and two vodkas during that time.

The crash occurred when Claerhout rammed his truck into the rear end of Willdermood's car while Willdermood was driving down Ridgeview Road in Johnson County, Kansas. The speed limit on this stretch of the road was 40 mph. Officer Misemer testified and the CDR report indicated that Claerhout's truck had been accelerating "100 percent" and traveling at a speed of 92 mph when he rammed Willdermood's car. The crash caused the truck's airbags to deploy. Misemer testified that the CDR reports showed that Willdermood had been driving about 47 mph when the crash occurred. Misemer believed that the force of the crash accelerated Willdermood's car to a speed of about 62 mph without any driver's input.

Officer John Mancayo, another accident reconstructionist, testified that the damage to Claerhout's truck and Willdermood's car showed that Claerhout had driven his truck almost squarely into the rear of Willdermood's car. This propelled Willdermood's car onto the grass on the right side of the road, where Willdermood's car ricocheted off a tree, then off a utility pole, and then crossed to the left side of the road before finally ramming into a wrought iron fence. The forensic pathologist who performed Willdermood's autopsy opined that Willdermood died from severe brain trauma

that occurred because of rapid acceleration and deceleration, which was consistent with experiencing a serious car accident.

Claerhout's statements that he had consumed eight to nine beers that day and that he was at a level four drunk came into evidence through Officer Ubrik's testimony. Ubrik additionally testified that Claerhout failed the walk-and-turn test and the one-leg stand test and that Claerhout had a breath alcohol content (BAC) of .211, which was over twice the legal limit. In addition, the State admitted Claerhout's DUI diversion agreement from 2010 into evidence over Claerhout's objection.

Claerhout was charged with involuntary manslaughter as an alternative to reckless second-degree murder. He did not present any evidence on his own behalf. Instead, he conceded his guilt of involuntary manslaughter. In his opening statement, Claerhout's attorney admitted:

"[Claerhout] was incapable of safely driving a vehicle and he's as guilty as he can possibly be of involuntary manslaughter, but the State has decided to charge him with second-degree murder, and when you look at all the facts in this case and the knowledge of what he carried with him at that time as he drove that evening, we're confident that you won't find him guilty of that."

During the jury instruction conference, Claerhout requested an instruction on voluntary intoxication as a defense against the crime of reckless second-degree murder. The district court denied this request, ruling that voluntary intoxication can be used as a defense only against crimes that require a defendant to act with specific intent. The district court granted the State's request to instruct the jury that voluntary intoxication was not a defense against the crime of reckless second-degree murder.

The jury found Claerhout guilty on all counts. Because Claerhout was charged with involuntary manslaughter as an alternative to reckless second-degree murder, the district court vacated Claerhout's conviction for involuntary manslaughter. For his second-degree murder conviction, the district court sentenced Claerhout to 117 months' imprisonment followed by 36 months' postrelease supervision. The district court ran Claerhout's 30-day jail sentence for his reckless driving conviction concurrent with his second-degree murder sentence. Claerhout timely appeals.

DID THE DISTRICT COURT ERR BY ALLOWING THE STATE TO ADMIT CLAERHOUT'S PRIOR DUI DIVERSION AGREEMENT?

Claerhout first argues that the court erred by admitting into evidence his prior DUI diversion agreement because that agreement was not relevant and was more prejudicial than probative. We disagree.

Applicable Law

K.S.A. 2016 Supp. 60-455 governs whether evidence of a defendant's prior crime may be admitted at trial. That statute provides that although such evidence is inadmissible to prove a defendant's "disposition to commit crime or civil wrong as the basis for an inference that the [defendant] committed another crime or civil wrong on another specified occasion," such evidence is admissible when used to establish " ‘some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.’ " "The material facts listed in K.S.A. 60-455 are exemplary rather than exhaustive, and a party can seek to admit evidence to prove a material fact not specifically enumerated." State v. McCune, 299 Kan. 1216, 1226-27, 330 P.3d 1107 (2014). The district court admitted Claerhout's prior DUI diversion agreement for the stated purpose of showing his state of mind—that Claerhout acted recklessly under circumstances manifesting extreme indifference to the value of human life.

When determining whether a district court properly admitted K.S.A. 2016 Supp. 60-455 evidence, courts engage in the following three-step test, with each step having its own standard of review:

"• First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.

"• Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.

"• Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the

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