State v. Hobbs, 88,327.

• Decision Date: 11 July 2003
• Docket Number: No. 88,327.,88,327.
• Citation: 276 Kan. 44,71 P.3d 1140
• Parties: STATE OF KANSAS, Appellee, v. PATRICK HOBBS, Appellant.
• Court: Kansas Supreme Court

276 Kan. 44

71 P.3d 1140

STATE OF KANSAS, Appellee, v. PATRICK HOBBS, Appellant.

No. 88,327.

Supreme Court of Kansas.

Opinion filed: July 11, 2003.

Jonathan L. Laurans, of Kansas City, Missouri, argued the cause and was on the brief for appellant.

Michael A. Russell, assistant district attorney, argued the cause, and David C. Smith, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Patrick Hobbs was convicted by a jury of involuntary manslaughter, aggravated battery, and leaving the scene of an injury accident. He appeals his convictions and sentence. This appeal was transferred from the Court of Appeals on this court's own motion pursuant to K.S.A. 20-3018(c).

Hobbs raises the following issues on appeal:

1. Whether evidence of Hobbs' blood alcohol content was properly admitted.

2. Did the trial court err in failing to grant a mistrial when a juror had contact outside the courtroom with a State's witness?

3. Did the trial court err in admitting testimony that Hobbs had been ejected from Sandstone Amphitheater and a photograph of the deceased?

4. Should the out-of-state State's witnesses have been permitted to testify even though their appearances were not procured according to the Uniform Act to Secure Attendance of Witnesses from Without State?

5. Did the trial court err in excluding the county coroner's report of death from evidence?

6. Did the prosecutor's remarks in closing argument about the lack of evidence of any product malfunction improperly shift the burden of proof to defendant?

7. In sentencing, did the district court properly classify Hobbs based on his criminal history?

On June 5, 2000, Brad Hewitt and Jathan Stevenson went to a concert at Sandstone Amphitheater in Bonner Springs, Kansas. Brad was driving a red Camaro. Defendant Patrick Hobbs also went to that concert. He was driving a black Ford Explorer.

After the concert, traffic on Highway 7 was extremely heavy and barely moving. Witnesses who were stuck in the traffic saw a Ford Explorer, which was driving on the right shoulder of the road, swerve from the shoulder onto the roadway. One witness described the occurrence as the Explorer attempting to cut back into the lane of traffic. Another said that the Explorer veered over from the unobstructed shoulder onto the road.

Witnesses' estimates of the speed the Explorer was traveling on the shoulder ranged from "pretty fast" and "fairly fast" to "cruising," compared to the stop-and-go roadway traffic, to "[a]nywhere from 55 to 60 miles an hour" to "[i]t looked like it had to be going at least 80 miles an hour." When the Explorer veered onto the roadway, it hit a red Camaro. One witness said that the Explorer "[j]ust drove right over the top of this little red car," and another testified that the Explorer "ramped up over" the car it hit. Several witnesses testified that the Explorer became "airborne." Before coming to rest on its side, the Explorer also hit a Ford Thunderbird and a white Jeep.

Brad Hewitt was hospitalized with serious injuries. The driver of the Thunderbird was injured and taken by ambulance to a hospital. Jathan Stevenson died from multiple crush injuries received in the automobile collision.

The Explorer came to rest on its driver's side. Two people who had been in the Jeep helped Hobbs crawl out of the passenger side door of the Explorer. Hobbs was wearing khaki trousers; he was not wearing a shirt. Shortly after emerging from the Explorer, Hobbs tried to get back into it but he was warned away on account of leaking gasoline.

In the early morning hours of June 6, 2000, a young man wearing only khaki pants approached the service desk at a motel in Bonner Springs. He gave his name as Hobbs and asked to use the house telephone to page someone so that he could get a ride. He was scraped, cut in several places, and bleeding and said that he had been ejected from Sandstone for fighting. When the motel clerk suggested calling the police, Hobbs left. The clerk called the police.

A police officer who was dispatched from the accident to the motel later spotted Hobbs in the vicinity running near a fast-food restaurant and pursued him on foot. The officer lost sight of Hobbs. Two K-9 units were called in. While a foot search was being conducted with the dogs, Hobbs was located and arrested on K-7 highway going south. He was transported to a holding cell in Bonner Springs.

Additional facts are developed as necessary in the discussions of various issues.

Hobbs first challenges the admission of evidence of his blood alcohol content.

The first officer arrived at the scene of the accident at approximately 11:50 p.m. on June 5, 2000. He was advised by witnesses that the driver of the Ford Explorer had run away. At the scene, an inventory of the contents of the Ford Explorer revealed two Busch beer cans, wallets, pagers, a cooler with ice in it, and an unopened bottle of Rolling Rock beer. One of the wallets contained identification for Hobbs.

Hobbs, who initially gave his name as Jim Gaines, was located by Officer Bogart approximately 2 to 2½ miles from the accident scene. At approximately 2:50 a.m., Hobbs was taken into custody and transported to the Bonner Springs City Hall. He smelled of alcohol, and his eyes were bloodshot and watery.

Officer Ruhulessin read the implied consent form to Hobbs that informs a person of the consequences of refusing to submit to breath, blood, or urine tests for alcohol and/or drugs. Ruhulessin testified that Hobbs appeared to be intoxicated at the time. "His eyes were bloodshot, watery, glazed and droopy. His speech was slurred and mumbled. His — there was a strong odor commonly associated with an alcoholic beverage emitting from his breath." After he refused to submit to a blood test, Hobbs was taken to a hospital for the purpose of having blood withdrawn. His blood was taken for testing by an emergency room nurse.

Hobbs filed motions to suppress the results of the blood test on the grounds that taking his blood constituted an unreasonable search and that K.S.A. 2000 Supp. 8-1001(f)(1) is unconstitutional. On appeal, Hobbs challenges the constitutionality of K.S.A. 2000 Supp. 8-1001(f)(1) on the ground that it supplies probable cause to believe defendant operated a vehicle under the influence of alcohol or drugs "if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to another person." The portion of the statute complained of by Hobbs has no application to this case because Hobbs' slurred and mumbled speech, bloodshot, watery, glazed, and droopy eyes, strong odor of alcohol, and the evidence linking him with operation of the Ford Explorer constituted ample bases for probable cause to believe that he operated a vehicle under the influence of alcohol or drugs. "A defendant to whom a statute may constitutionally be applied cannot challenge the statute on the ground that it may conceivably be applied unconstitutionally in circumstances not before the court." State v. Papen, 274 Kan. 149, 162, 50 P.3d 37, 46 (2002).

Hobbs also complains that the district court erred by admitting the results of his blood alcohol test into evidence. He contends that, because the test result was below the legal limit for DUI, it was irrelevant and confusing to the jurors. The admission or exclusion of evidence lies within the sound discretion of the trial court. A defendant asserting that the trial court abused its discretion bears the burden of showing that the trial court's action was arbitrary, fanciful, or unreasonable. State v. Lessley, 271 Kan. 780, 791, 26 P.3d 620 (2001). K.S.A. 2002 Supp. 8-1567(a)(2) provides that evidence of a blood alcohol concentration of .08 or more establishes a per se DUI violation, but a DUI violation may be established under other subsections of 8-1567(a) without regard for the alcohol concentration in the person's blood or breath. Hobbs was not charged under K.S.A. 2002 Supp. 8-1567 with DUI, per se or otherwise, but the jury was instructed on involuntary manslaughter while driving under the influence as a lesser offense of murder in the second degree. Hobbs has not shown that admission of the result of his blood alcohol test was unreasonable in the circumstances. It also appears that any error in admission of the test result was harmless to Hobbs. On Count I, the jury not only found Hobbs not guilty of murder in the second degree (killing Stevenson unintentionally but recklessly under circumstances showing extreme indifference to the value of human life) but also not guilty of involuntary manslaughter while driving under the influence.

Hobbs next argues that the court should have declared a mistrial when a juror had contact outside the courtroom with a State's witness. During the noon recess of trial on the day when Officer James R. Todd was testifying for the State, one of the jurors approached the witness. The juror asked Todd, "With all that equipment, you must have a large truck to carry all that in. Would you have a semi?" Todd responded, "No, sir. We have a Peterbilt truck that has a motor home attachment on it." No other statements were made by Todd. The conversation took place in the hallway with a number of other people around. After their brief discussion of the truck, Todd excused himself and reported the incident to the prosecuting attorney.

After hearing Todd's testimony about the incident, counsel for Hobbs requested a mistrial. Stating his impression that it "was a very innocent contact" on a topic "that doesn't have anything to do with this case," the district judge denied the motion for a mistrial. Counsel for Hobbs requested, in the alternative, the opportunity to question the juror "in camera, with counsel present, to determine whether or not that juror has a propensity to be at least...