State v. Williams
| Citation | 15 Kan.App.2d 656,815 P.2d 569 |
| Decision Date | 03 July 1991 |
| Docket Number | No. 65340,65340 |
| Parties | STATE of Kansas, Appellee, v. Michal A. WILLIAMS, Appellant. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
1. Generally, constitutional grounds for a reversal may not be asserted for the first time on appeal.
2. The appellate court may, if necessary to serve the ends of justice or to prevent a denial of fundamental rights, consider constitutional issues asserted for the first time on appeal.
3. Procedures employed in obtaining bodily fluids for use as evidence constitute an intrusion into the human body and depend upon a seizure of the person of the defendant. For that reason, such procedures are governed by the constitutional protections against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution.
4. A balancing test between the State's need for evidence and the substantial privacy and dignity interests of the individual must be applied to determine the propriety of a court-ordered intrusion into the human body to obtain bodily fluids for use as evidence.
5. An order requiring a defendant to provide semen for use as evidence should not be issued in the absence of a strong demonstration by the State of the most compelling need for such evidence. At a minimum, such an order should not be issued unless the State proves that the sample ordered to be given will provide relevant evidence which has probative value and is not merely cumulative to other evidence.
6. Under the facts shown, the court order requiring defendant to provide a semen sample was invalid and violated the defendant's Fourth Amendment rights to be secure against unreasonable searches and seizures.
7. A motion in limine should be granted to prevent prejudicial evidence from being admitted at trial.
8. In the matter under consideration, the prejudicial effect of evidence of defendant's refusal to provide a semen sample far outweighed the probative value of such evidence, and the trial court erred in refusing to grant a motion in limine as to such evidence.
9. Under the facts shown, it was error to permit introduction of evidence of defendant's refusal to provide a sample of his semen where there was no showing that such sample, had it been provided, would have been anything more than cumulative.
10. In the matter under consideration, the prejudicial effect of introducing evidence of a defendant's refusal to provide a sample of his semen and permitting that refusal to be argued to the jury by the State on final argument is such that a new trial must be ordered.
11. In deciding whether a trial court error constituted harmless error under the facts presented, the appellate court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.
Thomas Jacquinot, Asst. Appellate Defender, Eugene Montis, Legal Intern, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Alisa M. Arst, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before LARSON, P.J., and LEWIS and PIERRON, JJ.
This is an appeal by the defendant from his conviction on one count of rape. As a result of that conviction, the defendant was sentenced to a term of not less than 10 nor more than 25 years in the custody of the secretary of corrections.
A.S. is the complaining witness and victim of the alleged rape in the instant matter. She testified that she had known the defendant for a couple of months and that he had, during that period of time, driven her to and from work and other places. In addition, she testified that, during the period of their acquaintanceship, she saw the defendant two or three times a week and sometimes more frequently.
On the night the crime was alleged to have taken place, A.S. met the defendant at her cousin's home. In due time, the cousin's boyfriend showed up, and the four parties drove around Wichita, performing various and sundry errands. After the errands were completed, all four went to the defendant's apartment, where they ate, and drank some beer.
The group then left the defendant's apartment and drove to A.S.'s apartment, where the cousin and her boyfriend remained. It developed that A.S. needed to buy some shoes for work, so A.S. and the defendant left her apartment in defendant's car to purchase the shoes. A.S. was unable to obtain any money out of her bank auto teller, so A.S. and the defendant went to the defendant's apartment to wait until approximately 6 p.m., when it was believed A.S.'s money would become available through the bank auto teller.
While A.S. and the defendant were waiting in the defendant's apartment, A.S. testified that defendant started to question and pressure her about having sex. A.S. testified that she made every possible effort to discourage the defendant but to no avail. Ultimately, A.S. testified she was forced by threat of severe bodily harm to disrobe and engage in forced, nonconsensual intercourse with the defendant. Afterwards, defendant permitted A.S. to get dressed and drove her back to her apartment. There were a number of individuals The defendant offered an alibi defense. His common-law wife testified that, during the time the alleged rape was taking place, the defendant was with her. She stated that defendant picked her up from work at about 6:30 p.m. and was with her the rest of the evening. This testimony was consistent with the explanation given to police officers by the defendant on the night in question. The testimony, however, was totally at odds with the description of events given by A.S.
who saw A.S. after she returned to her apartment, all of whom noticed that her face was bruised and swollen. These witnesses also noted that A.S. was very upset, and she indicated to several witnesses that she had been raped. Ultimately, A.S. was taken to the hospital where the usual procedures were employed to treat A.S. and to collect evidence of the sexual assault.
As the trial court pointed out, the ultimate question for the jury was whether it believed the testimony offered by the State or the testimony offered by the common-law wife of the defendant. The trial court described the defendant's wife as a credible witness but indicated that, apparently, the jury chose to believe the version offered by A.S. and the other witnesses for the State.
The principal issue on this appeal involves the defendant's refusal to obey a court order to give a semen sample and the use of evidence of that refusal by the State.
As will be related, the defendant was invited both voluntarily and by a court order to provide a semen sample. The defendant refused to do so. Prior to trial, the defendant filed a motion in limine, requesting the court to order the prosecutor not to comment on defendant's refusal to give the semen sample. The court refused to issue such an order, and substantial testimony concerning this refusal by the defendant was admitted. In addition to the testimony offered by the State showing the refusal of the defendant, the prosecutor, on final argument, mentioned this refusal to the jury on three separate occasions.
The questions presented are whether it was proper, under the facts shown, to order the defendant to give a semen sample and whether it was proper to permit the State to introduce evidence of defendant's refusal to give the sample and argue that refusal to the jury on closing argument. In other words, our focus is on whether the trial court erred in refusing to grant the defendant's motion in limine.
The issue of whether the defendant would give a sample of his semen came up on two different occasions. The first time, defendant was asked to do so voluntarily. The police officer testified that, during a conversation with defendant, he advised the defendant that, if he was telling the truth, his semen would not match that taken from the victim. This testimony followed:
[At this point defendant's counsel objected to the witness answering the question; the objection was overruled.]
The issue came up again after a court order was obtained, ordering defendant to give samples of blood, saliva, pubic hair, and semen. This order was issued rather perfunctorily, and the record shows no evidentiary foundation was laid by the State to obtain this order. In addition, the record indicates that there was no objection by defendant's counsel.
After the order was issued, a police officer was dispatched to obtain the samples. The samples of blood, saliva, and pubic hair were obtained, but no semen sample. The "Q. ... You did--at some later time the defendant initially told you that he would not submit a semen sample in your first conversation, is that correct?
following testimony indicates what took place:
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