State v. Gordon

• Decision Date: 08 May 1976
• Docket Number: No. 47957,47957
• Citation: 549 P.2d 886,219 Kan. 643
• Parties: STATE of Kansas, Appellee, v. Jerry D. GORDON, Appellant.
• Court: Kansas Supreme Court

Page 886

549 P.2d 886

219 Kan. 643

STATE of Kansas, Appellee, v. Jerry D. GORDON, Appellant.

No. 47957.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court

1. The taking of a blood sample from a person suspected of driving while under the influence of intoxicating liquor is a 'search' protected by the guarantees against unreasonable searches and seizures of Section 15 of the Kansas Bill of Rights and the Fourth Amendment to the United States Constitution.

2. Under the Kansas 'implied consent statute' (K.S.A. 8-1001), a person operating a vehicle on a public highway in this state is deemed to have consented to the taking of a blood sample when he is arrested or taken into custody for an offense involving operating a motor vehicle under the influence of intoxicating liquor and the arresting officer has reasonable grounds to believe the person was driving under the influence of intoxicating liquor.

3. The provisions of K.S.A. 8-1001 become operative only after a person is arrested or otherwise taken into custody.

4. Before arrest, the constitutional validity of a search is governed by the voluntariness of the consent.

5. The guarantees against unreasonable searches and seizures protected by Section 15 of the Kansas Bill of Rights and the Fourth Amendment to the United States Constitution apply solely to governmental action, not to the acts of private individuals.

6. A deputy district coroner is a public official whose primary duty is to determine the cause of death of a person dying from other than natural causes. (K.S.A. 19-1031.)

7. A stipulation freely entered into is ordinarily binding on the trial court and the litigants unless certain circumstances are shown to justify relieving a party from such stipulation.

8. Compliance with the contemporaneous objection rule (K.S.A. 60-404) requiring timely, specific objection is, ordinarily, a prerequisite to consideration of a point on appeal.

9. The rationale underlying the comtemporaneous objection rule is that stating the objection and grounds therefore permits the court to preclude improper evidence from affecting the decision.

10. In a case tried to the district court, objection to the admissibility of evidence first raised in the brief requested by the court after the case had been taken under advisement, although not 'timely' in the strict sense, is consistent with the underlying rationale of the contemporaneous objection rule under circumstances set forth in the opinion.

11. Where trial is by the district court, on appellate review the supreme court indulges in the presumption the lower court considered only properly admissible evidence in reaching its decision unless the contrary is shown by the record.

12. In applying the Kansas harmless-error rule (K.S.A. 60-261) to a federal constitutional error, a court must be able to declare the federal constitutional error had little, if any, likelihood of having changed the result of the trial, and the court must be able to declare such a belief beyond a reasonable doubt. (Following State v. Fleury, 203 Kan. 888, Syl. 2, 457 P.2d 44.)

13. While contributory negligence on the part of the decedent in a prosecution for vehicular homicide is no defense, it is a circumstance to be considered along with all other evidence to determine whether the defendant's conduct was or was not the proximate cause of decedent's death.

14. In some instances, a decedent's contributory negligence may have been such a substantial factor in his death that it operate as a superseding cause intervening between the defendant's conduct and the fatal result so as to be itself the proximate cause.

15. The degree of negligence required by the vehicular homicide statute is something more than simple negligence. (K.S.A. 21-3405.)

16. The record in an action wherein the appellant was convicted of transporting an open container of alcoholic beverage, driving while under the influence of intoxicating liquor and vehicular homicide is examined, and, as more fully set forth in the opinion, it is held: (1) The appellant did not voluntarily consent to the taking of his blood sample, (2) the blood sample was taken by the deputy district coroner-an agent of the state, (3) objection ot the admissibility of appellant's blood test results was outside the stipulation entered into, (4) this court may properly consider the admissibility issue on appeal, (5) it was reversible error for the district court to consider the results of appellant's blood alcohol test, (6) the foregoing requires a redetermination of the proximate cause of decedents' deaths, (7) the vehicular homicide statute requires more than simple negligence. (K.S.A. 21-3405.)

Gwinn G. Shell, Garnett, argued the cause, Charles S. Fisher, Jr., and Robert D. Ochs of Fisher, Ralston & Ochs, Topeka, were with him on the brief for appellant.

Terry Jay Solander, County Atty., argued the cause and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FATZER, Chief Justice:

This is an appeal by the defendant Jerry D. Gordon from convictions, following trial by the district court, for driving while intoxicated (K.S.A 8-530), transporting an open container of alcoholic beverage (K.S.A. 41-804) and two counts of vehicular homicide (K.S.A. 21-3405).

The two-car head-on collision giving rise to the defendant's conviction occurred between 1:00 and 1:15 a. m. on the morning of Sunday, June 16, 1974, some fifteen miles west of Garnett on a blacktop highway commonly called the Burlington Road. The accident occurred at the bottom of a slight hill. Looking west from the point of impact, one can see approximately 440 yards; looking east, one can see approximately 260 yards. The road had no center line and was 23 feet wide. The defendant was driving east, returning to Garnett after taking his date to her home near Westphalia. The driver of the other car, Randy Rugg, was going west taking his date, Kathy Frank, to her Westphalia home.

The evidence showed that when the cars were slightly more than 60 feet apart, each was on the wrong side of the road, left of center. The front right tire of each car was exactly in the middle of the road. One tire of each car left 'scuff marks'-tire marks made by a hard braking turn, extending back about 30 feet from the approximate point of impact. The cars collided on the defendant's side of the road, seven feet in from the south edge. At the approximate point of impact, the defendant's car was headed in an east-southeasterly direction; the Rugg vehicle, in a west-southwesterly direction. The defendant's car struck the Rugg car on the right front fender angling toward the driver. A substantial portion of the front end and right side of the Rugg car was compressed to the right front seat. Damage to defendant's car was less extensive and was limited to the right front portion.

Kathy Frank was apparently killed instantly; Randy Rugg was later to die in the ambulance on the way to the hospital; the defendant sustained facial lacerations and was found lying in the front seat of his car in an unconscious condition when law enforcement officers arrived at the scene at approximately 2:15 a. m. The defendant was subsequently taken by ambulance to the hospital in Garnett where he spent the night and was released the next day.

A sample of the defendant's blood was taken while he was at the hospital. The blood alcohol test showed his blood alcohol content to be 0.15 percent. Samples of blood and other body fluids were also taken from the two decedents by the deputy district coroner, Dr. Leitch. Tests were negative for alcohol, but showed both decedents had barbiturates in their bodies. The test indicated the presence of the drugs, but not their concentration. The barbiturates detected induce sleep and allay nervousness and can be obtained only by prescription.

At the scene of the accident, two open liquor bottles were found on the floor of the defendant's car. No containers were found to indicate the source of the drugs detected in decedents' bodies. The evidence did not reveal where the decedents got the drugs, only that the Rugg family doctor had not prescribed them.

On the evening prior to the accident, the defendant and his date went to a dance in Garnett. During a three-hour period at the dance the defendant consumed about one-half pint of Scotch. When the dance was over at 12:00, he drove his date home. She testified she noticed nothing unusual about the way defendant acted or the way he drove. Leaving his date's home at 1:00 a. m., defendant started back to Garnett. He was tired and, wanting to take the shortest route home, he selected the Burlington Road. He remembered meeting one car. The next thing he remembered was seeing two headlights coming at him. He remembered little that happened after the accident. Although he remembered having a blood sample taken, he could not recall any of the conversation or circumstances in connection with it.

There was some conflicting testimony concerning the activities of the decedents on the evening prior to the accident. Randy Rugg's family testified Randy and Kathy spent the evening at the Rugg home until about 1:15 a. m., when they left for Kathy's home.

There was other testimony that Randy and Kathy had been seen earlier that evening at 'the Spot,' and they were seen driving around the lake between 12:00 and 1:00 a. m. on that morning.

At a trial on October 3, 1974, after the state's opening statement and before the first witness was called, stipulations which the state and defendant had entered into were read into the record with the approval of both parties. After the state and defendant had presented their evidence and rested, the court took the matter under advisement and directed both parties to submit briefs. The defendant raised in his brief, for the first time, the issue of his blood test's admissibility. He contended evidence of his blood alcohol test was inadmissible under the...