State v. Jones, 50158

Decision Date03 August 1979
Docket NumberNo. 50158,50158
Citation3 Kan.App.2d 553,598 P.2d 192
PartiesSTATE of Kansas, Appellee, v. Dennis R. JONES, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. A Jackson v. Denno hearing does not reach nontestimonial evidence. Coordination tests performed on the highway after being stopped on suspicion of driving while under the influence of intoxicating liquor do not violate the defendant's privilege against self-incrimination. A Jackson v. Denno hearing is not necessary insofar as it relates to such tests, since such a hearing applies only to evidence which is testimonial in nature. (Following State v. Faidley, 202 Kan. 517, 450 P.2d 20 (1969).)

2. Technical arrest is not the touchstone which sets out the time a Miranda warning must be given. The Miranda warning must be given before any type of custodial interrogation is conducted.

3. A jury instruction which emphasizes and singles out certain facts admitted into evidence at a criminal trial is disapproved.

4. An evidentiary hearing under the rule of Jackson v. Denno can be waived. However, to be valid, such a waiver must be knowingly and intelligently made. In the absence of such a valid waiver, it is the duty of the trial court to hold an evidentiary hearing even though no request for such hearing is made. (Following State v. Shuckahosee, 2 Kan.App.2d 717, 720, 587 P.2d 923 (1978).)

Michael C. Helbert, of Guy & Helbert, Emporia, for appellant.

Steven L. Davis, Asst. County Atty., Jay W. Vander Velde, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before MEYER, P. J., and REES and SPENCER, JJ.

MEYER, Judge:

The appellant (defendant) was arrested on November 22, 1977, for driving while under the influence of intoxicating liquor. Prior to trial, the defendant moved to suppress certain statements he made to the patrolman at the time of his arrest. The trial court refused to permit an evidentiary hearing on the motion to suppress and refused an offer of proof. At trial, defendant renewed his motion to suppress the evidence obtained as a result of the arrest. The court again refused an evidentiary hearing outside the presence of the jury. At trial, the patrolman was allowed to testify as to statements made to him over a CB radio concerning defendant's having run his car into a ditch. Also, the patrolman was permitted to testify as to what a person at that scene told him. The court gave limiting instructions as to this testimony, predicated upon the theory that the jury was not to consider the statements to be proof of the truth of the matter stated, but was only to consider them to explain a sequence of events leading to the search for, and stop of, the defendant. The court instructed on driving under the influence of intoxicating liquor, using a definition different from that approved in State v. Sauvage, 201 Kan. 555, 556, 441 P.2d 861 (1968). Such instruction also differed from that found in PIK Civ.2d 8.84 (1978). The defendant was convicted; hence this appeal.

The court did not err in admitting the testimony of the patrolman as to the CB message and the on-site statements made to him. The court advised that it would permit testimony concerning these statements for the purpose of explaining the trooper's subsequent actions, and the prosecution was instructed to restrict the testimony as to those statements going to the identification of the vehicle, not further conversation.

The references made by the patrolman to the statements of the unknown witnesses tracing the automobile and giving its location were admissible for the purposes of an explanation of the patrolman's action in proceeding to the location where defendant was stopped. Such testimony is permissible to explain a sequence of events leading to action by the patrolman as it is not offered to prove the truth of the matter asserted. State v. Hollaway, 214 Kan. 636, 638, 522 P.2d 364 (1974). While State v. Hollaway involved police radio dispatch testimony, such case is analogous to testimony heard over the CB radio or by an unknown witness at the scene when such testimony is limited to explain the officer's action.

It is argued that the court committed error in its instruction No. 7, wherein driving under the influence of intoxicating liquor was defined. Defendant claims two bases for his objection to the instruction: (1) there was no causality required between the drinking of intoxicating liquor and the impairment of the driver's ability to drive; and (2) the instruction incorrectly pointed to specific items of evidence to the detriment of other evidence.

The causality requirement is met by the language of the instruction used by the court which defines "under the influence" as taking such a quantity As results in an appreciable interference with the exercise of ordinary care in the operation of the motor vehicle. As to causality therefore, the instruction given is not much different from either that stated in Sauvage, 201 Kan. at 556, 441 P.2d 861, or the instruction in PIK Civ.2d 8.84 (1978).

Defendant's second observation regarding the instruction has some merit. The court instructed that "(a) person may be under the influence of intoxicating liquor even though he may walk straight or give no visible signs of intoxication to the causal observer."

Defendant herein did not consent to a blood alcohol test, and therefore, the main evidence in the case is the testimony of the patrolman regarding defendant's performance on the coordination test. Therefore, the above quoted portion of the instruction takes on added significance.

The Kansas court has disapproved any instruction which emphasizes and singles out certain evidence admitted at a criminal trial. State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952 (1975).

Again, were this the only error, it could probably be considered harmless, in part, because the instruction as given is no grave departure from the accepted form of instruction approved in Sauvage, and in part, because of the court's instruction No. 9 which stated "It is your duty to carefully and impartially consider all the testimony and, if possible, reconcile any apparently conflicting statements of witnesses.

"You are the sole and exclusive judges of the evidence, what it proves or disproves; of the credibility of the witnesses and of the weight and...

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5 cases
  • State v. Arculeo, 82,636, 82,637.
    • United States
    • Kansas Court of Appeals
    • November 30, 2001
    ...committed the crime of aggravated criminal sodomy. It was up to the jury to decide if it happened. Arculeo relies on State v. Jones, 3 Kan. App.2d 553, 598 P.2d 192 (1979), to support his argument that an instruction may not provide undue emphasis to a specific piece of evidence. We do not ......
  • State v. Maze
    • United States
    • Kansas Court of Appeals
    • February 14, 1992
    ...the defendant to disclose any knowledge he might have 'from his own mouth.' " 202 Kan. at 521-22, 450 P.2d 20. In State v. Jones, 3 Kan.App.2d 553, 555-56, 598 P.2d 192 (1979), our court held that: "[C]oordination tests performed on the highway after being stopped on suspicion of driving wh......
  • State v. Cathey, 59742
    • United States
    • Kansas Supreme Court
    • July 17, 1987
    ...that the weight of all evidence is left to the jury and special emphasis is not to be given in the instructions. See State v. Jones, 3 Kan.App.2d 553, 598 P.2d 192 (1979). The State argues that Instruction No. 19 was proper because it was counterbalanced by Instruction No. 11, which "It is ......
  • State v. Peele
    • United States
    • South Carolina Supreme Court
    • October 31, 1988
    ...683, 603 P.2d 1017 (1979); City of Highland Park v. Block, 48 Ill.App.3d 241, 6 Ill.Dec. 285, 362 N.E.2d 1107 (1977); State v. Jones, 3 Kan.App.2d 553, 598 P.2d 192 (1979); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982); State v. Arsenault, 115 N.H. 109, 336 A.2d 244 (1975); W......
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