State v. Parson

Decision Date27 October 1979
Docket NumberNo. 50517,50517
Citation601 P.2d 680,226 Kan. 491
PartiesSTATE of Kansas, Appellee, v. Steven W. PARSON, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The physician-patient privilege (K.S.A. 60-427) is applicable to civil actions and prosecutions for misdemeanors. It may not be invoked in felony cases.

2. The contemporaneous objection rule (K.S.A. 60-404) requires timely and specific objection and is ordinarily a prerequisite to review of an issue on appeal.

3. In a trial to a court, objection to the admissibility of evidence raised for the first time in defendant's argument on a motion for judgment of acquittal is considered consistent with the requirement that an objection be "timely." (K.S.A. 60-404)

4. Testimony by an expert witness regarding the accuracy and reliability of blood alcohol tests and the procedure used in administering such tests is sufficient foundation for the admissibility of the test results.

5. In weighing evidence submitted to prove a driver's intoxication at the time of an accident, the trial court should consider not only the length of time between the accident and the evidence of intoxication, but all other relevant testimony reflecting his condition.

6. In an appeal from a conviction of involuntary manslaughter in violation of K.S.A. 21-3404, the record is examined and it is Held : (1) the physician-patient privilege is not applicable; (2) appellant's objections were timely made at trial; (3) a proper foundation was laid for the admitting of the blood alcohol test results; (4) the trial court did not err in admitting the blood alcohol test and all testimony regarding the test.

Randy S. Stalcup of Kidwell & Williamson, Chartered, Wichita, argued the cause and was on the brief for appellant.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

HERD, Justice:

Appellant Steven Parson appeals from a conviction of involuntary manslaughter (K.S.A. 21-3404) in a trial to the court. The charge stems from an automobile accident in which his car collided with a car driven by a Mr. Steven R. Baptist. Baptist was killed in the accident. Appellant appeals. We affirm.

The undisputed facts are as follows: Appellant Steven Parson and Steven R. Baptist were involved in an automobile accident at about 3:40 a. m. on February 4, 1978. It appeared to be almost a head-on collision on South Broadway in Wichita. There were no other persons involved and no eye witnesses. The officers arrived at 3:42 a. m. and thereafter Parson and the body of Steven Baptist were taken by ambulance to St. Joseph Medical Center in Wichita. Parson was examined by Dr. Thomas Hayes, emergency room physician, at 4:25 a. m. Hayes ordered urine and blood alcohol tests be given the defendant as well as a blood count. The blood alcohol test showed appellant's blood alcohol level to be 0.14, indicating intoxication pursuant to K.S.A. 8-1005(B ).

Appellant was charged with involuntary manslaughter (K.S.A. 21-3404). The information reads:

"Steven W. Parson, did then and there unlawfully, willfully, unintentionally kill a human being, to-wit: Steven R. Baptist, while in the commission of an unlawful act not amounting to a felony, to-wit: drive a motor vehicle, to-wit: 1970 Oldsmobile bearing license # SG-R-6986, at approximately 162 feet north of 63rd Street South on South Broadway, Sedgwick County, Kansas, while under the influence of intoxicating liquor, contrary to K.S.A. 8-1567, and did drive the aforedescribed motor vehicle left of the center lane at said location, contrary to K.S.A. 8-1514; contrary to K.S.A. 21-3404 (Involuntary Manslaughter, Class E Felony)."

Appellant waived a jury trial. The court tried the case and found Parson guilty as charged and sentenced him to prison for not less than one nor more than five years, then granted him probation. From this judgment appellant appeals.

Appellant claims the trial court erred in admitting Dr. Hayes' testimony because it is barred by the physician-patient privilege under K.S.A. 60-427. He argues the privilege is applicable in a misdemeanor action and seeks to advance the novel theory that because the felony with which he is charged is made up of "three entirely separate and distinct charges only one of which is a felony," the State cannot use the physician's testimony to prove the misdemeanors. Without that testimony, the felony charge cannot be proven. His argument is without merit. K.S.A. 60-427 (B ) clearly states the privilege may be invoked only "in a civil action or in a Prosecution for a misdemeanor . . . ." See State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975); State v. Campbell, 210 Kan. 265, 500 P.2d 21 (1972). This case is neither a civil action nor a prosecution for a misdemeanor. The physician-patient privilege may not be invoked.

Appellant next asserts the blood alcohol test result was not admissible in the absence of a showing that the test procedure was accepted as reliable by the witness and by experts in the field. As a second part of this issue, appellant urges the blood alcohol test results contain no probative value because the sample of blood was taken approximately one hour after the accident.

Appellee argues these issues are not before the court because appellant failed to raise timely objections during trial. Appellant's objections to the issues were made for the first time in his argument for judgment of acquittal.

The contemporaneous objection rule has its origin in K.S.A. 60-404, which states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection."

This statute is intended to prevent reversals for improper admission of evidence unless a specific objection is made at the time the evidence is introduced. It does not, however, operate in a vacuum and has been relaxed to fit trial situations, such as where the objectional matter isn't readily apparent or in a trial to the court rather than to a jury. In State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886, 894 (1976), we stated:

"Ordinarily, failure to make timely, specific objection to the admission of evidence will bar consideration of the admissibility question on appellate review. (Citation omitted.) Here, the appellant's objection...

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21 cases
  • State v. Bristor
    • United States
    • Kansas Court of Appeals
    • 3 May 1984
    ...a BAT does not reflect on the admissibility of the test results, but only goes to the weight of such evidence. See State v. Parson, 226 Kan. 491, 495, 601 P.2d 680 (1979). Therefore, any delays in the administration of a BAT which are not unreasonable should not be justification for denying......
  • State v. Warden
    • United States
    • Kansas Supreme Court
    • 10 March 1995
    ...647 P.2d 1292 (rape trauma syndrome); Washington, 229 Kan. 47, 622 P.2d 986 (multi-system method of enzyme analysis); State v. Parson, 226 Kan. 491, 601 P.2d 680 (1979) (blood alcohol tests); Tice v. Richardson, 7 Kan.App.2d 509, 644 P.2d 490 (1982) (HLA test for paternity). However, the Fr......
  • State v. DuMars
    • United States
    • Kansas Court of Appeals
    • 25 March 2005
    ...testimony where the objection is made in sufficient time for the court to rectify the problem. See, e.g., State v. Parson, 226 Kan. 491, 493, 601 P.2d 680 (1979); State v. Gordon, 219 Kan. 643, 651-52, 549 P.2d 886 (1976) (superseded by statute as noted in State v. Murry, 271 Kan. 223, 225,......
  • State v. Spagnola
    • United States
    • Kansas Supreme Court
    • 7 December 2012
    ...these circumstances.” (Emphasis added.)In Bogguess, 293 Kan. at 747, 268 P.3d 481, the court cited with approval State v. Parson, 226 Kan. 491, 493–94, 601 P.2d 680 (1979). In Parson, the court noted that the contemporaneous objection rule is relaxed to fit particular trial situations, incl......
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