State v. Osby
| Decision Date | 25 May 1990 |
| Docket Number | No. 63600,63600 |
| Citation | 793 P.2d 243,246 Kan. 621 |
| Parties | STATE of Kansas, Appellee, v. Michael F. OSBY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The extent of juror examination during voir dire is within the sound discretion of the trial court. Where there is no record of the voir dire proceedings, a claim of abuse of discretion by the trial court in limiting voir dire will not be considered on appeal.
2. For purposes of discrediting a witness, drug-use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of the occurrence as to which the witness testifies or at the time of trial. It is also admissible to the extent that it shows the witness' mind, memory, or powers of observation were affected by the habit.
3. The scope of cross-examination of a witness who has entered into a plea agreement with the State lies within the sound discretion of the trial court, and, absent a showing of a clear abuse of discretion, there is no prejudicial error in exercising such discretion.
4. The extent of cross-examination pursuant to K.S.A. 60-422(b), for purposes of impeachment, lies within the sound discretion of the trial court, and, absent proof of clear abuse, the exercise of that discretion will not constitute prejudicial error.
5. Extrinsic evidence of prior contradictory statements made by a witness is admissible in the discretion of the trial court where the witness is given an opportunity while testifying to identify, explain, or deny the statements.
6. Under the facts herein, a witness who was selective in the recall of personal testimony from a prior criminal trial in which the defendant was neither present nor represented was "present at the hearing and available for cross-examination," and the prior hearsay testimony is admissible.
Geary N. Gorup, of Wichita, argued the cause, and Kiehl Rathbun, of Wichita, was with him on brief for appellant.
Thomas J. Robinson, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.
Defendant, Michael F. Osby, appeals from his jury conviction of one count of aggravated kidnapping, K.S.A. 21-3421; one count of kidnapping, K.S.A. 21-3420; and one count of unlawful possession of a firearm, K.S.A. 21-4204. Osby asks that his convictions be reversed because of trial court error in
(1) limiting his voir dire of the jury panel;
(2) instructing the jury on the issue of drug use;
(3) limiting cross-examination as to the victim/witness' drug use;
(4) excluding certain evidence relating to a different crime; and
(5) allowing the State to introduce testimony by two witnesses that was given at prior separate proceedings in which Osby was neither a party nor present.
We find no trial error requiring reversal and affirm.
The crimes charged against Osby occurred on January 14, 1987. They stem from the efforts of the friends and relatives of Earl Ray to find and punish the person who shot and stabbed Ray. Ray was on life-support systems at a Wichita hospital on that date. He died of his injuries the following day.
On the afternoon of January 14, 1987, Terry Brown drove Michael and Monique Johnson to a house at 2849 N. Vassar Street, in Wichita. The Johnsons went to the house to collect a debt owed them by Earl Ray. Brown waited outside of the house for 20 to 30 minutes before the Johnsons returned. They were unable to collect the money they previously had given to Earl Ray. Brown took Michael and Monique back to their house.
Later that day, Brown again took the Johnsons to the house on Vassar, apparently to try again to collect the money. Monique went into the house while Brown and Michael waited in the car. Five to ten minutes later, Osby and Robert Taylor approached the car and asked them to come into the house. When Brown expressed his reluctance, the men told Brown that Monique would be in the house for a while and that they should come into the house. When Brown got out of the car, he saw that one of the men had a gun.
The men took Brown and Michael into the back bedroom of the house. There were several people in the bedroom, and each had a gun. Michael and Monique were searched, and Earl Ray's gun was found on Michael. Osby swung a gun at Michael and hit him in the head. The gun went off, and Michael fell into the corner. Michael had a gash in his forehead and was bleeding.
At that point, the people in the bedroom tied up Brown and the Johnsons. Osby hit Monique on the back of her head with a gun. Some of those in the room discussed taking Brown and the Johnsons out into the country and killing them.
Four or five of the people in the room took Brown and the Johnsons to the front of the house and then out to Brown's car. Once they were in the car they managed to escape and then drove to the police station and reported the incident.
Osby was charged with aggravated kidnapping of Monique Johnson, kidnapping of Terry Brown, and unlawful possession of a firearm as a result of the incidents at the house that day.
Osby apparently was not allowed to ask the members of the jury panel during voir dire whether they had any special knowledge regarding the effect of drug usage.
Osby asserts, without explanation, that the trial court impaired his ability to utilize his peremptory challenges in a meaningful manner by stopping his juror inquiry. Osby intended to inquire whether the panel had any special knowledge with respect to drug use.
We do not have a record of the voir dire proceedings. The only indication of what happened during voir dire is the statement of Osby's attorney which was made after the jury was selected:
"The only thing I wanted to do is proffer to the Court on voir dire when I was attempting to question the panel as to any special knowledge they might have regarding the effect of drug usage, that one of the witnesses in this case will testify on the day of the alleged kidnapping Monique Johnson consumed cocaine, became very agitated, paranoid, fearful, because of the drug consumption."
The extent of examination of jurors during voir dire is within the discretion of the trial court. We will not interfere unless an abuse of discretion is clearly shown. State v. Guffey, 205 Kan. 9, 13, 468 P.2d 254 (1970). There is no record of the voir dire proceedings; consequently, we cannot consider Osby's contention that the trial court abused its discretion in limiting his voir dire examination. See State v. Wright, 219 Kan. 808, 812, 549 P.2d 958 (1976).
Osby also claims that the trial court embarked on a series of comments and anticipatory rulings regarding the admissibility of drug-use evidence. In support of his assertion, Osby apparently refers to the following statement by the trial court:
We have held that credibility of a witness cannot be impeached by admitting evidence of the use of drugs unless it is shown "the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit." State v. Belote, 213 Kan. 291, Syl. p 4, 516 P.2d 159 (1973). Since the trial court's statement was generally consistent with Kansas law regarding the admissibility of evidence of drug use, Osby was not prejudiced.
Osby asserts that the jury instruction given by the trial court regarding whether a person's credibility could be impeached by the fact the person was under the influence of drugs was confusing and contradictory. The instruction read:
Osby did not object to this instruction. The instruction is not confusing or contradictory.
Prior to the time the trial court proposed giving the instruction, Osby requested the following instruction:
"Evidence showing that a witness is a user of drugs is not admissible for the purpose of discrediting the witness, nor to show the effect of the use of such drugs, unless it is shown that the witness was under their influence at the time of the occurrences to which he/she testified, or that his/her mind or memory or powers of observation were affected by the habit."
The requested instruction is essentially in accord with State v. Belote, 213 Kan. 291, Syl. p 4, 516 P.2d 159.
Osby did not object to the instruction given by the trial court. K.S.A. 22-3414(3). He cannot now raise this issue on appeal. Further, it cannot be said the trial court's failure to give the requested instruction was clearly erroneous because it is unlikely the jury would have returned a different verdict had the requested instruction been given. State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
Osby further asserts his right to effective cross-examination and confrontation was infringed, if not denied outright. He objects to the limits the trial court placed on his attorney in eliciting testimony regarding Monique's drug use shortly before she perceived the events in question. During the course of the trial, the court told Osby's attorney that evidence of Monique's drug use was not...
To continue reading
Request your trial
-
State v. Stafford
...at 655–62, 608 P.2d 959. We later limited our holding in Lomax & Williams for determining witness availability. In State v. Osby, 246 Kan. 621, 632–33, 793 P.2d 243 (1990), we held that if the declarant, while testifying at trial, answers some questions concerning the subject matter of the ......
-
State v. Waldrup
...It is also admissible to the extent that it shows the witness' mind, memory, or powers of observation were affected by the habit.” State v. Osby, 246 Kan. 621, Syl. ¶ 2, 793 P.2d 243 (1990). Waldrup, has not shown how the names of the medications Roubison was taking were relevant or have “a......
-
State v. Known
...witness was under the influence of drugs at the time of the occurrence as to which the witness testifies[.]" (quoting State v. Osby, 246 Kan. 621, 793 P.2d 243, 247 (1990) )).The dissent further argues that defense counsel made a tactical decision to terminate the inquiry because counsel wa......
-
State v. Corbett, No. 91,518.
...admission of the eyewitness' prior testimony pursuant to K.S.A. 60-460(a). 278 Kan. at 79, 91 P.3d 1162. Similarly, in State v. Osby, 246 Kan. 621, 793 P.2d 243 (1990), two eyewitnesses testified for the State. The same eyewitnesses had testified in other criminal trials about the same even......