State v. Lewis
| Decision Date | 20 June 2014 |
| Docket Number | No. 108,147.,108,147. |
| Citation | 327 P.3d 1042,50 Kan.App.2d 405 |
| Parties | STATE of Kansas, Appellee, v. Aaron D. LEWIS, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
The duty to provide discovery ( i.e., case information given to the opposing party) in a criminal case is governed by two provisions of the Kansas Code of Criminal Procedure, K.S.A. 2013 Supp. 22–3212 and K.S.A. 22–3213, and by a prosecutor's constitutional obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The discovery provisions of the Kansas Rules of Civil Procedure do not establish any duties to disclose information to the opposing party in a criminal case.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., LEBEN, J., and HEBERT, S.J.
Aaron Lewis appeals the convictions that arose out of a high-speed police chase. He argues that a paramedic should not have been allowed to provide expert testimony because the substance of the testimony wasn't disclosed to him 90 days before trial and the prosecutor didn't provide an evidentiary foundation for the paramedic to provide expert testimony. But the 90–day requirement for disclosure is part of the Kansas Rules of Civil Procedure and does not apply to a criminal case like this one. And the paramedic testified that he had extensive training and experience with how drivers and passengers are injured in auto accidents—something he relied upon in his work to look for hidden injuries that needed immediate treatment. The district court did not err in allowing the paramedic's testimony.
Lewis also claims that the prosecutor made improper comments that made the trial unfair, that the district court erred in its jury instructions, and that the district court erred in considering Lewis' past criminal convictions when determining his sentences for the new offenses he was convicted of in this case. We have examined each of these claims, but we find no error. We therefore affirm the district court's judgment.
One of the key issues at trial was whether Lewis was the driver or the passenger of the car that police pursued in the high-speed chase. Accordingly, we will set out in some detail the evidence presented to the jury about what happened, focusing on the evidence regarding each of the individuals who were apprehended after the car chase ended.
The events at issue here began on a Saturday morning in December 2006 when Kansas Highway Patrol Trooper David Morrison noticed that the windows on a black Pontiac Firebird appeared to be tinted more than allowed under Kansas law. When Morrison turned on his flashing lights to pull the car over, its driver kept going. Morrison and several other law-enforcement officers chased the Firebird at high speeds through Wyandotte County.
Eventually, the Firebird headed the wrong way on the Turner Diagonal, where it first sideswiped one car before colliding head-on with another. A few seconds after the Firebird came to a stop, a man wearing a dark jacket exited its passenger door and began to run away. Morrison and another highway patrol trooper, Curt Gabbert, chased the man. They apprehended him and later determined that he was Kenneth Evans. He had an abrasion on his forehead.
Shawn Okon, who witnessed the accident, stated that after the first man left the car, he saw a man sitting in the driver's seat of the Firebird, lying over the center section of the car. Okon testified that the man in the driver's seat then got out.
Trooper Michael Hamilton also reported to the scene. After he got out of his car, a witness pointed down the hill next to the road and said, “He ran down there.” Hamilton saw a man pounding on the rear door of a duplex about 50 yards from the road. The man was only wearing one shoe, a white tennis shoe. Hamilton ran toward the man, yelling, “Police!” and “Get on the ground!” Hamilton said the man was staggering “as if his legs were badly hurt.”
Hamilton saw the man stumble into the duplex and noticed that his shoe fell off in the doorway. Hamilton yelled, “Police, open the door!” and then kicked the door open. Another trooper, Matthew Brooks, joined Hamilton inside the duplex, and they placed the man, later identified as Lewis, in handcuffs. Lewis had a broken rib, bruised lung, and abrasions to his right and left shins.
Brooks found a plastic baggie containing a white, powdery substance in Lewis' jeans pocket. The troopers also found a white shoe in the Firebird, wedged between the brake pedal and the floorboard.
The State charged Lewis with aggravated battery, possession of cocaine, fleeing or eluding a police officer, obstructing official duty, and reckless driving. All of the charges were tried to a jury, and Lewis was convicted. On appeal, Lewis raises claims relating to the admission of a paramedic's testimony, to statements made by the prosecutor at trial, to jury instructions, and to his sentencing.
As for the paramedic's testimony, defense counsel made a pretrial motion to keep out some potential evidence from the paramedic, Richard Christy, at trial—what's called a motion in limine. In that motion, the defense orally argued that the State had not provided proper notice of any expert opinions Christy might give, citing a notice provision of the Kansas Rules of Civil Procedure, K.S.A. 2013 Supp. 60–226(b)(6)(A), (C). Under that provision, expert testimony generally must be disclosed 90 days before trial. The district court ruled that Christy could provide nonexpert, or lay, testimony because he was at the scene of the accident but could not offer conclusions on whether Lewis had been driving the car on the date in question.
During Christy's direct examination by the State, defense counsel objected to Christy's testimony. The court overruled the objection, and Christy described his experience and training as a paramedic who regularly responds to automobile collisions. He told the jury that in a frontal collision, people in a car are either thrown “up” or “down.” Christy said that after observing the damage to the windshield on the passenger side of the Firebird, the passenger had likely gone “up” and suffered an abrasion-type injury to the head. He then testified that Evans, and not Lewis, had an abrasion on his forehead. Christy also testified that the steering wheel and driver's-side floorboard had been damaged and that a white shoe had been left wedged in the “accelerator area,” indicating that the driver of the car had been thrown “down” under the steering wheel. Christy said that he would expect the driver of the car to have had fractured ribs or torso injuriesas well as abrasions on his knees from hitting the dash components.
Another of Lewis' claims on appeal is that the prosecutor made improper statements at trial that are significant enough to order a new trial. The first such statement came during jury selection, as the prosecutor discussed the concept of reasonable doubt. To convict, of course, the jury must find the defendant guilty beyond a reasonable doubt. The prosecutor made statements apparently trying to distinguish between eliminating reasonable doubt and eliminating all doubt:
“[I]s anyone here going to hold me to a standard of proof that is more than beyond a reasonable doubt?
After those remarks, the district judge advised the prosecutor—in a bench conference outside the jury's hearing—to be careful in his remarks:
Lewis also notes a statement the prosecutor made in closing argument. The prosecutor said that “[n]umerous people” said an officer identified himself and told Lewis to “[g]et on the ground.” Lewis contends that statement went beyond the evidence because only Hamilton provided supporting testimony for it.
Lewis' objection to jury instructions relates to a general instruction the court gave before the jury began its deliberations. In it, the court used a pattern jury instruction that told the jury that if it didn't reach a verdict, a retrial “would be a burden on both sides”:
“Your only concern in this case is determining if the defendant is guilty or not guilty.
....
....
“... If every juror is fair and reasonable, a jury can almost always agree.
“It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment.”
In August 2007, when this case was tried, such an instruction was common and used in approved pattern instructions. Indeed, the Kansas Supreme Court in December 2007 found no error in its use in another case, State v. Nguyen, 285 Kan. 418, 435–37, 172 P.3d 1165 (2007). But this instruction—including its statement that another trial would be a burden on both sides—has since been disapproved, see State v. Salts, 288 Kan. 263, 265–67, 200 P.3d 464 (2009), and Lewis contends that its use here influenced the jury to wrongly convict him.
The district court sentenced Lewis based on his criminal-history score of A and Kansas sentencing guidelines. Lewis' final claim of error on appeal is that the district court should not have considered his...
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