State v. Dale

• Decision Date: 23 December 2011
• Docket Number: No. 99,781.,99,781.
• Citation: 267 P.3d 743,293 Kan. 660
• Parties: STATE of Kansas, Appellee, v. Willie J. DALE, Appellant.
• Court: Kansas Supreme Court

267 P.3d 743

293 Kan. 660

STATE of Kansas, Appellee,

v.Willie J. DALE, Appellant.

No. 99,781.

Supreme Court of Kansas.

Dec. 23, 2011.

Syllabus by the Court

1. K.S.A. 60–467, the best evidence rule, provides that “to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these rules.”

2. K.S.A. 60–401(m) defines the term “writing” to mean “handwriting, typewriting, printing, Photostatting, photographing and every other means of recording upon any tangible thing any form or communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.”

3. Under the plain language of K.S.A. 60–401(m), a video qualifies as a “writing” because it records a combination of moving pictures and sounds—a form of communication or representation—upon a tangible thing—in this case, a DVD.

4. Under the facts of this case, the best evidence rule did not prohibit the State's admission of a slow motion video because the original video, which was the best evidence, already had been admitted. Thus, the State did not introduce the slow motion video to prove the contents of the original video.

5. Under the facts of this case, the district court did not abuse its discretion by admitting cumulative or unduly repetitive evidence when it admitted a slow motion video depicting the defendant shooting at a law enforcement officer. Although the court already had admitted the original video, the slow motion video enabled the jury to more carefully review the actual sequence of events and corroborated the officer's testimony as to the sequence of events.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Keith E. Schroeder, district attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.

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

The Court of Appeals affirmed Willie J. Dale's jury convictions of attempted first-degree murder, aggravated robbery, and three counts of aggravated assault. State v. Dale, 2009 WL 1591400 (Kan.App.2009) (unpublished opinion). We granted Dale's petition for review on the single issue of whether the district court erred in admitting a slow motion version of a patrol-car video. Dale argues the video violated the best evidence rule and was cumulative. We conclude that because the best evidence, i.e., the original video, already had been admitted at trial and the modified video was not introduced to prove or disprove the content of the original video, the video's admission did not violate the best evidence rule. And because the video was not unduly repetitious and added something to the State's case, we hold its admission was not cumulative.

Factual and Procedural Background

The evidence at trial showed that Dale robbed a flower shop using a gun and then attempted to flee on foot from law enforcement officers. Dale's flight ended abruptly when he shot at Hutchinson Police Sergeant Clay Rothe, who had stepped out of his patrol vehicle. Sergeant Rothe returned fire, injuring Dale. Dale was arrested and charged with attempted first-degree murder, two counts of attempted second-degree murder with two alternative counts of aggravated assault, aggravated robbery, and one additional count of aggravated assault.

At trial, the State admitted a DVD, Exhibit 11, which contained video of the incident taken from Sergeant Rothe's patrol car. The State then identified and sought to admit a separate DVD, Exhibit 15, a slow motion enhancement of Exhibit 11. Dale objected, arguing the video was cumulative and violated the best evidence rule, because “the best evidence would be the original [Exhibit 11].” The district court overruled Dale's objection.

After the jury convicted Dale of attempted first-degree murder, aggravated robbery, and three counts of aggravated assault, the trial court sentenced him to 753 months' imprisonment. Dale appealed on multiple grounds, and the Court of Appeals affirmed his convictions. State v. Dale, No. 99,781, 2009 WL 1591400, at *1–2 (Kan.App.2009) (unpublished opinion). We granted Dale's petition for review on the single issue of whether the district court erred by admitting the modified version of the patrol-car video.

Analysis

Dale contends the admission of Exhibit 15, the slow motion enhancement of Exhibit 11, violated the best evidence rule as codified at K.S.A. 60–467(a). The State argues the best evidence rule does not apply because Exhibit 11 was the best evidence and was admitted at trial. Further, the State points out that Exhibit 15 was not offered as a substitute for the original video but rather was offered in addition to the original video.

The Court of Appeals concluded the district court did not err in admitting Exhibit 15:

“Applying the best evidence rule to the videos at issue here, the original, full speed video was the best evidence. However, Exhibit 15 showed the exact same events and was supported by an adequate foundation as being the same video as the original, although played at a slower speed. Dale presents no authority to support his position that merely slowing the playback speed of a video depicting identical events and from an identical source as the full speed video makes the slow motion video something less than the best evidence.” Dale, 2009 WL 1591400, at *2.

Resolution of Dale's assertion requires interpretation of a statute, a question of law over which we have unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); State v. Riojas, 288 Kan. 379, 382–83, 204 P.3d 578 (2009).

The best evidence rule provides: “As tending to prove the content of a writing, no evidence other than the writing itself is admissible, except as otherwise provided in these...