261 P.3d 923
Kan. Ct. App.2011Background
- Nye was convicted of felony DUI after a February 1, 2009 stop where the deputy detected alcohol odor and Nye showed signs of intoxication; Nye admitted his license was suspended and was transported to the center for field sobriety testing; the stop was videotaped and Nye refused a breath test; the State charged Nye with DUI and misdemeanors (marijuana possession and DWS) and Nye pled guilty to the misdemeanors; at trial the State introduced evidence that Nye was driving on a suspended license, and the jury saw the stop and sobriety testing; Nye was sentenced to 6 months and a $2,500 fine; Nye appeals challenging (a) admissibility of the suspended-license evidence, (b) prosecutorial misconduct in closing arguments, and (c) the fine amount/needs for findings under Copes; the Copes decision later requires consideration of Nye’s financial resources for fine payment on a fourth DUI offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of driving on a suspended license | Nye: evidence violates 60-455 | State: evidence relevant to material fact; probative value outweighs prejudice | Admissible with limiting instruction; no abuse of discretion |
| Prosecutorial misconduct in closing arguments | Nye: comments improperly urged guilt and burden-shift | State: comments were within wide latitude and rebutted fatigue theory | Some comments crossed line but insufficient for plain error; no reversal; overall not wrongful |
| Fine for DUI conviction and Copes remand | Nye: court failed to consider resources before imposing $2,500 | State: statute requires fine; but Copes requires financial findings | Vacate fine; remand for appropriate findings under Copes |
Key Cases Cited
- State v. Wells, 289 Kan. 1219 (2009) (analysis of admissibility and limiting instruction under 60-455)
- State v. Wahweotten, 36 Kan. App. 2d 568 (2006) (breath-test refusal evidence not per se burden shifting; admissible in proper context)
- State v. Doyle, 2010 WL - unpublished (2010) (prosecutor comments on refusal to test discussed in Wahweotten context)
- State v. Newburn, No. 96,535, 2008 WL 142114 (2008) (breath-test refusal comments within wide latitude)
- State v. Decker, 288 Kan. 306 (2009) (strict limitation on comments; not plain error here)
- State v. Tosh, 278 Kan. 83 (2004) (prosecutor misconduct regarding jury trial motive)
- State v. Simmons, 292 Kan. 406 (2011) (plain-error framework for prosecutorial misconduct)
- State v. Merrills, 37 Kan. App. 2d 81 (2007) (ill will considered in plain-error analysis)
- Copes, State v. Copes, 290 Kan. 209 (2010) (requires consideration of defendant’s financial resources for fourth DUI fine)