State v. Wanttaja, 56013

• Decision Date: 03 May 1984
• Docket Number: No. 56013,56013
• Citation: 680 P.2d 922,9 Kan.App.2d 441
• Parties: STATE of Kansas, Appellant, v. Ralph WANTTAJA, Appellee.
• Court: Kansas Court of Appeals

Page 922

680 P.2d 922

9 Kan.App.2d 441

STATE of Kansas, Appellant, v. Ralph WANTTAJA, Appellee.

No. 56013.

Court of Appeals of Kansas.

May 3, 1984.

Review Granted June 25, 1984.

Syllabus by the Court

1. K.S.A. 8-1002 imposes a duty to deliver results of a blood alcohol test to defendant upon request.

2. Where defendant requests a copy of such test and defendant's counsel makes a general request for discovery in accordance with the general practice and procedure of the county attorney and the trial court, neither of which is granted, sanctions to be imposed for failure to make discovery are within the discretion of the trial court.

3. Where alternative sanctions are available for failure to make discovery, it is incumbent upon the party who may be adversely affected by a severe sanction (i.e., the State of Kansas) to affirmatively request at trial the least damaging sanction permissible under the law.

4. Where the State is aware of the prejudicial effect to defendant of the evidence not disclosed and fails at trial to request one of the lesser sanctions available to the trial court, it is held: The trial court did not abuse its discretion in excluding evidence the State failed to disclose.

Francis E. Meisenheimer, Asst. County Atty., and Robert T. Stephan, Atty. Gen., for appellant.

Herbert R. Hess, Jr., of Hess, Leslie & Brown, Hutchinson, for appellee.

Before FOTH, C.J., and SWINEHART and MEYER, JJ.

SWINEHART, Judge:

This is an interlocutory appeal by the State from the trial court's decision on the day of trial to suppress the results of a blood alcohol test administered to defendant, Ralph Wanttaja.

Defendant was arrested on October 1, 1982, for driving under the influence of alcohol, in violation of K.S.A.1982 Supp. 8-1567. At that time defendant took a test, administered on an intoxilyzer, to determine blood alcohol content. Defendant requested a copy of the blood alcohol test (B.A.T.) results, but never received it. Defense counsel was given permission by the prosecutor to obtain defendant's arrest records, kept in the Hutchinson Police Department files. When defense counsel asked the HPD records clerk for "defendant's arrest reports," he received a copy of the arresting officer's report, but no intoxication report or B.A.T. results. Defense counsel did not specifically ask the clerk for the B.A.T. results.

Further, defense counsel did not file a motion for discovery, since the prosecutor had on prior occasions assured him that this was unnecessary, as the State would give defense counsel records and test results on oral request. The prosecutor was unaware until the day of trial that defense counsel had not received a copy of defendant's B.A.T. results, which show defendant's alcohol level as .19% and establish a presumption of defendant's intoxication at the time of his arrest.

On the day of trial, defendant moved to suppress the B.A.T. results because they had not been delivered to defendant as is required by K.S.A. 8-1002. The motion was granted. The State appeals from this suppression order.

Defendant contends that this court does not have jurisdiction to hear this interlocutory appeal. The State, in its brief, does not address the jurisdictional issue, which is governed by K.S.A. 22-3603. Although no printed record of the proceedings below has been forwarded to this court, we shall assume that the judge's order "suppressing" the results of the blood alcohol test was made "prior to the commencement of trial," and not after trial had begun.

This court provided an extensive discussion of when it has jurisdiction to hear an interlocutory appeal concerning a trial court's order suppressing evidence in State v. Boling, 5 Kan.App.2d 371, 617 P.2d 102 (1980). Boling held that "[a]n interlocutory appeal by the State will lie from an order 'suppressing' evidence on constitutional grounds or as a sanction for official 'misconduct,' but not from an order excluding evidence on grounds based on the rules of evidence, such as lack of relevance or materiality." Syl. p 5. Boling was recently cited with approval in State v. Martin, 233 Kan. 148, 150, 660 P.2d 563 (1983), where the court stated:

"The purpose of K.S.A. 22-3603 is to permit appellate review of pretrial rulings which may be determinative of the case. State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 (1977). See also State v. Boling, 5 Kan.App.2d 371, 617 P.2d 102 (1980), which provides a thorough analysis of the statutory scheme and the difference between an order 'suppressing' evidence obtained in violation of constitutional rights and one 'excluding' evidence because of evidentiary rules."

The trial court in the present case excluded results of the blood alcohol test because the State had failed to comply with K.S.A. 8-1002's requirement that a report of the test be delivered, upon request, to the person submitting to the test. This evidence was not excluded on grounds arising under the rules of evidence. Rather, the order had a purpose closely akin to that of the general exclusionary rule. The order served as a sanction for official conduct deemed prejudicial to the defendant and to deter such conduct in the future. As such, we view the order as having "suppressed" evidence within the meaning of K.S.A. 22-3603. Under the facts of this case, the State's interlocutory appeal is proper.

The State's only argument on appeal is that the trial court erred in suppressing the results of the blood alcohol test. The court suppressed the results because the State had failed to deliver a copy of the results to the defendant upon defendant's request as is required by K.S.A. 8-1002.

K.S.A. 8-1002 provides:

"Upon the request of any person submitting to a chemical test under this act, a report of the test shall be delivered to such person."

Although the statute itself is unambiguous, it is silent as to the time in which the State must deliver the record to the requesting defendant, and as to the sanctions for noncompliance with its provisions.

K.S.A. 22-3212, the general discovery and inspection statute vests power in the trial court to suppress the results of the B.A.T. K.S.A. 22-3212(1) provides in part:

"Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph any relevant ... (b ) results or reports of physical ... examinations, and of scientific tests ... made in connection with the particular case ...."

Unlike K.S.A. 8-1002, K.S.A. 22-3212(7) makes clear the penalty for noncompliance:

"If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this section or with an order issued pursuant to this section, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances."

In the present case, defendant's counsel requested "defendant's arrest reports" from the Hutchinson Police Department clerk, but received only a copy of the arresting officer's report. Although this police department file apparently contained a copy of the intoxication report and of the B.A.T. results, neither of these was given to defendant's counsel due to the clerk's "mistake." Defendant's counsel did not file a written motion for discovery because he had been told by the prosecutor that this was not necessary. As part of his trial strategy, defendant's counsel did not inform the State that he had not received the B.A.T. results until just before the trial commenced.

The parties agree that sanctions, including absolute exclusion of the material from evidence, are to be left to the discretion of the trial court. See K.S.A. 22-3212(7).

"Factors to be considered by the trial court in imposing a proper sanction include: surprise to the defense as to the contents (State v. Jones, 209 Kan. 526, 498 P.2d 65); absence of a request to inspect the materials (State v. Sullivan & Smith, 210 Kan. 842, 504 P.2d 190); the amount of other evidence bearing on guilt (State v. Morin, 217 Kan. 646, 653, 538 P.2d 684); and prejudice, if any, to the defense (State v. Johnson, 219 Kan. 847, Syl. 1, 549 P.2d 1370)." State v. Villa & Villa, 221 Kan. 653, 656-57, 561 P.2d 428 (1977).

The sole stated reason for the court's exclusion of the B.A.T. results is the State's noncompliance with K.S.A. 8-1002. However, implicit in the court's ruling is its recognition that the defendant could be unfairly surprised by the admission at the trial of the B.A.T. results, since their content had not been disclosed to the defendant in previous testimony. Further, the court was aware that both defendant, when tested, and defendant's counsel, when he asked for defendant's arrest records, had requested that information.

Although the amount of other evidence bearing on defendant's guilt is difficult to determine at this early stage of the proceedings, the court's admission that the B.A.T. results are important is some indication that there may not be other overwhelming or uncontradicted evidence bearing on defendant's guilt.

Additionally, the court knew that the admission of the B.A.T. results would be prejudicial to defendant. The B.A.T. results, included in the record on appeal, show that defendant's blood alcohol content was .19% on October 1, 1982, when he was arrested for DUI. K.S.A. 8-1005 states that a blood alcohol content of .10% by weight establishes a presumption of intoxication. Admission of the B.A.T. results would have established a prima facie case that defendant was under the influence of alcohol to a degree that rendered him incapable of driving safely.

The State admits that the trial court is granted broad discretion in matters concerning the admission of evidence, see State v. Beard, 220 Kan. 580, 584, 552 P.2d 900 (1976), but argues that the...