290 P.3d 620
Kan.2012Background
- Suter petitioned for review of a Court of Appeals decision affirming his convictions for DUI and DWS.
- The Court of Appeals had rejected Suter’s claims that the district court interfered with a defense witness’s decision to testify, and that DWS is an alternative means crime, and had reviewed the DUI alternative‑means issue.
- The district court allowed Bailey to testify but warned of possible self‑incrimination; Bailey ultimately invoked his Fifth Amendment rights.
- Suter admitted to consuming alcohol; Bailey claimed he drove the motorcycle; the State presented evidence that Suter operated the vehicle with a BAC of .10.
- The jury convicted Suter of DWS and of DUI (with Count 2 the alternative DUI count) and the district court sentenced him; the panel’s disposition was reviewed by the Kansas Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there constitutional interference with the defense witness? | Suter | State | No substantial interference; rights not violated. |
| Is DWS an alternative means crime? | DWS is an alternative means crime | Disjunctive phrasing shows alternative means | DWS is not an alternative means crime. |
| Does DUI contain alternative means in this statute? | Yes, operating or attempting to operate are separate means | No, they describe the driving element | DUI does not contain alternative means; conviction sustained on operating under influence. |
| Was there jury unanimity error on Count 1 due to alternative means? | Unanimity required on each alternative | Brown framework controls; not multiple means | Not reversible; evidence supports the conviction. |
Key Cases Cited
- Webb v. Texas, 409 U.S. 95 (U.S. Supreme Court 1972) (witness coerced by judge’s admonitions; due process impact)
- State v. Finley, 268 Kan. 557 (Kan. 2000) (Sixth Amendment compulsory process; due process standard for interference)
- State v. Carter, 284 Kan. 312 (Kan. 2007) (de novo review of interference with defense witnesses)
- State v. Ahrens, 296 Kan. 151 (Kan. 2012) (DUI statute not containing alternative means; operate/attempt to operate descriptive of driving element)
- State v. Brown, 295 Kan. 181 (Kan. 2012) (identifying alternative means; Brown framework for statutory intent and disjunctive phrasing)
- State v. Perkins, 296 Kan. 162 (Kan. 2012) (reiterates Brown on use of disjunctive in DUI context)
- State v. Wright, 290 Kan. 194 (Kan. 2010) (unanimity right; Timley rule application)