State v. McNaught

• Decision Date: 17 January 1986
• Docket Number: No. 58052,58052
• Citation: 713 P.2d 457,238 Kan. 567
• Parties: , 12 Media L. Rep. 1890 STATE of Kansas, Appellee, v. Thomas R. McNAUGHT, Appellant.
• Court: Kansas Supreme Court

Page 457

713 P.2d 457

238 Kan. 567, 12 Media L. Rep. 1890

STATE of Kansas, Appellee, v. Thomas R. McNAUGHT, Appellant.

No. 58052.

Supreme Court of Kansas.

Jan. 17, 1986.

Syllabus by the Court

1. The record is examined in a criminal action in which the defendant was convicted of vehicular homicide (K.S.A. 21-3405) and driving under the influence of alcohol (K.S.A.1984 Supp. 8-1567), and it is held that the district court did not err (1) in permitting photographic, audio, and television coverage of the preliminary hearing and the trial; (2) in overruling defendant's motion to prohibit spectators at the trial from wearing MADD and SADD buttons; (3) in its rulings pertaining to the admission of evidence; (4) in permitting two witnesses to testify whose names were not endorsed on the information; (5) in its instructions to the jury; and (6) in overruling defendant's motions for dismissal, judgment of acquittal, and for a new trial. The trial court erred in the sentence imposed.

2. The propriety of granting or denying permission to the news media to broadcast, record, or photograph court proceedings involves weighing the constitutional guaranties of freedom of the press and the defendant's right to a public trial on the one hand and, on the other hand, the due process rights of the defendant and the power of the courts to control their proceedings in order to permit the fair and impartial administration of justice.

3. The due process rights of an accused are not inherently denied by television trial coverage, and no per se constitutional rule prohibits permitting broadcast or photographic coverage of criminal proceedings.

4. The usual remedy for adverse pretrial publicity is a change of venue and this should be so whether the adverse publicity is in the form of a printed newspaper or television exposure. The burden of proof is on the defendant to show prejudice in the community from media publicity, not by speculation, but as a demonstrable reality.

5. Where a trial court permits photographic, audio, and television reproduction of the trial proceedings, the defendant has the burden to prove prejudice by showing that media coverage prevented the defendant from presenting his defense or in some way affected the ability of the jury to judge defendant fairly.

6. In the administration of justice, the trial judge is charged with the preservation of order in his court and with the duty to see that justice is not obstructed by any person or persons whatsoever. The decision of whether the jury was or possibly could have been influenced by actions of spectators rests within the sound discretion of the trial court, the exercise of which will not be disturbed unless it appears that prejudice resulted.

7. Under K.S.A.1984 Supp. 21-4603(2), a trial court may not impose imprisonment, which mandates incarceration, with either probation or suspension of sentence, because to do so would be to decree mutually exclusive penalties. Restitution may only be ordered in conjunction with probation or suspended sentence.

Mark L. Bennett, Jr. of Marshall, Davis, Bennett & Hendrix, Topeka, argued the cause, and Wilburn Dillon, Jr. of Tilton, Dillon, Beck & Crockett, Topeka, was with him on briefs, for appellant.

Arthur R. Weiss, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on brief, for appellee.

PRAGER, Justice:

This is a direct appeal by the defendant, Dr. Thomas R. McNaught, from jury convictions of vehicular homicide (K.S.A. 21-3405), a class A misdemeanor, and driving under the influence of alcohol (DUI) (K.S.A.1984 Supp. 8-1567), a class A misdemeanor. The defendant was acquitted of involuntary manslaughter (K.S.A.1984 Supp. 21-3404), leaving the scene of an injury accident (K.S.A. 8-1602), failure to render aid (K.S.A.1984 Supp. 8-1604), and failure to report an injury accident (K.S.A.1984 Supp. 8-1606). Following the convictions, the trial court imposed sentences on each count and the defendant appealed.

This case arose out of a tragic automobile accident which occurred on July 29, 1984, at about 8:32 p.m. on Northwest 46th Street north of the city of Topeka in Shawnee County. Just prior to the accident, Kathleen (Kathy) Bahr was riding a bicycle in a westerly direction. The bicycle was struck in the rear by an automobile driven by the defendant in a westerly direction on 46th Street. The evidence showed that, following the impact, Kathy Bahr's body struck the hood of defendant's vehicle, breaking the right side of the windshield, and she was then thrown over the back of the car. The bicycle became attached to the front side of the defendant's vehicle. Defendant testified that, just prior to the accident, he had stopped at 46th Street and Rochester Road and then proceeded west on 46th Street with his cruise control set at 50 to 55 miles per hour which was within the posted speed limit. He testified that looking ahead he could see no objects when suddenly there was a bang on his windshield. He thought that someone must have thrown a rock or brick at his car and he did not want to stop three or four miles from home on a dark highway. It reminded him of a previous experience he had had in 1958 when a rock was dropped from an overpass onto his car as he was driving. Dr. McNaught felt that he should go home and report the occurrence to the police. He kept driving and watching the fracture move across the windshield. He was beginning to think he should stop when he saw a patrol car's red lights in his rear view mirror. Defendant then stopped his car and remained inside until instructed by Deputy Sheriff Jeff Ritchie to open the car door.

Deputy Ritchie testified that he first observed defendant's vehicle on 46th Street with its bright lights on, traveling at a high rate of speed and emitting sparks from under its right side. The officer flashed his bright lights on and off but received no response from the oncoming vehicle. Ritchie continued to notice the sparks as the vehicle passed. Ritchie then turned his car around and pursued the vehicle. He caught up with it approximately one mile down the road. The vehicle stopped in the middle of the roadway without pulling over to the shoulder. Defendant asked the officer what the problem was. The officer looked at the defendant's vehicle and noticed a smashed windshield covered with blood and hair. Officer Ritchie showed the defendant a bicycle which had fallen from underneath defendant's car as it hit a bump just before it came to a stop. The defendant said that someone had thrown a brick at his vehicle approximately one mile back.

Shortly thereafter, Trooper Thomas Wilson of the Kansas Highway Patrol arrived at the scene to assist Ritchie. Trooper Wilson noticed that defendant's eyes were watery and bloodshot, and that he was swaying when walking. The trooper noticed a mild odor of alcohol on defendant's breath. Trooper Thomas Wilson gave the defendant a horizontal gaze nystagmus test. Trooper Wilson then placed defendant under arrest for driving under the influence of alcohol. Wilson thereafter turned defendant over to Sergeant William Hudson of the Shawnee County Sheriff's Department who took defendant to the courthouse and performed a breath alcohol intoxilyzer test which tested .136 percent blood alcohol.

The defendant was charged by Sgt. Hudson with driving under the influence of alcohol, failure to render aid at an injury accident, failure to report an injury accident, and leaving the scene of an injury accident. Later, after Kathy Bahr died, defendant was charged in the complaint with involuntary manslaughter (K.S.A.1984 Supp. 21-3404) in addition to the charges already made by Sgt. Hudson. Further facts will be provided in the discussion of points raised on the appeal.

The case was tried to a jury in Shawnee County District Court. The evidence presented by the parties was highly conflicting. Defendant testified, in substance, that from 4:15 p.m. to 6:30 p.m. he and a friend had consumed three highballs, each consisting of one and one-half ounces of bourbon, ice, and Tab. Dr. McNaught and the friend then sat down to dinner at 6:30 p.m., during which Dr. McNaught drank a four ounce glass of red wine. Dr. McNaught's dinner companion left the house at 7:00 p.m. He testified that Dr. McNaught had no trouble walking or talking and displayed no effect of the alcohol at that time. Dr. McNaught testified that he had nothing else to drink after his friend left, and he then sat down to read a book. At around 8:30 p.m. he became hungry for something sweet. He drove to Sutton's North Plaza where he purchased two bags of candy and returned to his car. He experienced no difficulty in walking, talking, paying for the candy or driving his car. Dr. McNaught then proceeded to drive his vehicle proceeding home on 46th Street and the collision occurred.

There was evidence presented by defendant that the drivers of two other vehicles traveling on 46th Street had barely avoided striking the bicycle and had to suddenly turn aside in order to avoid a collision. The defendant also presented expert testimony that Kathy Bahr possibly had been struck by another automobile as she lay on the pavement after the collision with Dr. McNaught's vehicle.

The case was tried in a highly professional manner by able counsel for both sides and was submitted to the jury. The jury acquitted Dr. McNaught of the felony charge of involuntary manslaughter, leaving the scene of an injury accident, failure to render aid, and failure to report an injury accident. It found defendant guilty of vehicular homicide and driving under the influence of alcohol, both misdemeanors. Defendant filed a motion for a new trial which was denied. The court then sentenced defendant, and he filed a timely appeal. Defendant in his brief on appeal raises 13 separate points involving claimed errors at the pretrial and trial stages and in the imposition of...