State v. GordonState v. Gordon
The opinion of the court was delivered by
This is an appeal by the defendant Jerry D. Gordon from convictions, following trial by the district court, for driving while intoxicated (
The two-car head-on collision giving rise to the defendant’s conviction occurred between 1:00 and 1:15 a. m. on the morning of Sunday, June 16, 1974, some fifteen miles west of Garnett on a blacktop highway commonly called the Burlington Road. The accident occurred at the bottom of a slight hill. Looking west from the point of impact, one can see approximately 440 yards; looking east, one can see approximately 260 yard's. The road had no center line and was 23 feet wide. The defendant was driving east, returning to Garnett after taking his date to her home near Westphalia. The driver of the other car, Randy Rugg, was going west taking his date, Kathy Frank, to her Westphalia home.
The evidence showed that when the cars were slightly more than 60 feet apart, each was on the wrong side of the road, left of center. The front right tire of each car was exaсtly in the middle of the road. One tire of each car left “scuff marks” — tire marks made by a hard braking turn, extending back about 30 feet from the approximate point of impact. The cars collided on the defendant’s side of the road, seven feet in from the south edge. At the approximate point of impact, the defendant’s car was headed in an east-southeasterly direction; the Rugg vehicle, in a west-southwesterly direction. The defendant’s car struck the Rugg car on the right front fender аngling toward the driver. A substantial portion of the front end and right side of the Rugg car was compressed to the right front seat. Damage to defendant’s car was less extensive and was limited to the right front portion.
Kathy Frank was apparently killed instantly; Randy Rugg was later to die in the ambulance on the way to the hospital; the defendant sustained facial lacerations and was found lying in the front seat of his car in an unconscious condition ■when law enforcement officers arrived at the scene аt approximately 2:15 a. m. The
A sample of the defendant’s blood was taken while he was at the hospital. The blood alcohol test showed his blood alcohol content to be 0.15 percent. Sample's of blood and other body fluids were also taken from the two decedents by the deputy district coroner, Dr. Leitch. Tests were negative for alcohоl, but showed both decedents had barbiturates in their bodies. The test indicated the presence of the drugs, but not their concentration. The barbiturates detected induce sleep and allay nervousness and can be obtained only by prescription.
At the scene of the accident, two open liquor bottles were found on the floor of the defendant’s car. No containers were found to indicate the source of the drugs detected in decedents’ bodies. The evidence did nоt reveal where the decedents got the drugs, only that the Rugg family doctor had not prescribed them.
On the evening prior to the accident, the defendant and his date went to a dance in Garnett. During a three-hour period at the dance the defendant consumed about one-half pint of Scotch. When the dance was over at 12:00, he drove his date home. She testified she noticed nothing unusual about the way defendant acted or the way he drove. Leaving his date’s home at 1:00 a. m., defendant started back to Garnett. He was tired and, wanting to take the shortest route home, he seleoted the Burlington Road. He remembered meeting one car. The next thing he remembered was seeing two headlights coming at him. He remembered little that happened after the accident. Although he remembered having a blood sample taken, he could not recall any of the conversation or circumstances in connection with it.
There was some conflicting testimony conсerning the activities of the decedents on the evening prior to the accident. Randy Rugg’s family testified Randy and Kathy spent the evening at the Rugg home until about 1:15 a. m., when they left for Kathy’s home.
There was other testimony that Randy and Kathy had been seen earlier that evening at “the Spot,” and they were seen driving around the lake between 12:00 and 1:00 a. m. on that morning.
At a trial on October 3, 1974, after the state’s opening statement and before the first witness was called, stipulations which the state and defendant had entered into were read into the record with the approval of both parties. After the state and defendant had presented their evidence and rested, the court took the matter
On November 1, 1974, the parties again came before the court for entry of judgment. At this proceeding, the court, prosecutor and defense counsel had an extensive discussion on the admissibility of defendant’s blood alcohol test. At the close of the discussion, the court ruled the test was properly in evidence and rendered the judgment and sentence from which the defendant appeals.
The defendant’s first point on appeal is that the district court erred in considering the results of his blood alcohol test. We agree.
In
State o. Brunner,
supra, we considered whether the tаking of a blood sample from a person suspected of driving while intoxicated was an unreasonable search and seizure in violation of Fourth Amendment protections. The general principles of law recounted there govern the instant point on appeal. The Fourth Amendment and Section 15 of the Kansas Bill of Rights guarantee the people security against unreasonable search and seizure of their persons. The taking of a blood sample from a person suspected of driving while under the influence of intoxicating liquor is a “search” within the meaning of the foregoing provision. Under our “implied consent statute” (
“. . . [W]henever he or she shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor . . . and the arresting officer has reasonаble grounds to believe that prior to arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer. . . .”
However, .the provisions of this statute become, operative only after a person is arrested or otherwise taken into custody. Before arrest, a person may voluntarily agree to a blood test, but is free to refuse. Absent voluntary consent there is no valid waiver of an accused’s constitutional rights against unreasonable search and seizure..
Here, .the appellant’s blood sample was taken before he was arrested or in custody. Therefore, whether the taking was an impermissible search turns on the voluntariness of the appellant’s consent.
From the foregoing evidence, we are of the opinion it cannot be said the appellant voluntarily consented to the taking of his blood sample.
The state argues that Dr. Leitch took appellant’s blood sample acting as a private citizen; therefore, Fourth Amendment proscriptions are not applicable. From our reading of the record, however, we believe the doctor was acting as an agent of the state — as deputy district coroner.
The Fourth Amendment prohibition against unreasonable searches 'and seizures- applies solely to governmental action, not to the acts, of private individuals.
Burdeau v. McDowell,
“The Burdeau rule has withstood the development of the exclusionary rule and has gained the strength of over fifty years of acceptance. . . •. [T]he effect of Burdeau is . . . to- admit evidence obtained through private conduct, regardless of the legality of the search or seizure. . . .” Beeson & James, Searches by Private Individuals: Admissible Windfalls, 15 AFJAG L. Rev. 91, 100-101 (1973).
See Annot., 36 A. L. R. 3d 553 (1971).
A deputy district coroner is a public officer whose primary duty is to determine the cause of death of a person dying from other
In the early morning hours of June 16, 1974, Deputy District Coroner Leitch was notified of an automobile accident resulting in at least one death. In his capacity as deputy district coroner, he drove to the accident scene. His coroner’s report on cause of death sets forth his findings at the scene. He reported there had been a head-on collision, and Kathy Frank was dead in the front seat of the Rugg vehicle. He obsеrved empty beer cans in appellant’s car and reported the highway patrol trooper at the scene was holding two liquor bottles found in appellant’s car as evidence. While still at the accident scene, Dr. Leitch received notification through the sheriff’s department that the driver of the vehicle containing the dead girl was dead on arrival at the hospital. Dr. Leitch released the body of the dead girl to the funeral director and, still acting as deputy district cоroner, drove to the hospital. His coroner’s report indicated he first saw the body of Randy Rugg in the hospital emergency room. He also found appellant in the emergency room. Minutes after arriving at the hospital emergency room, he directed that a sample of appellant’s blood be taken. Shortly thereafter, and still acting as deputy district coroner, Dr. Leitch went to a local funeral home where he performed an autopsy on both decedents. At triаl, Dr. Leitch was called to testify in his capacity as deputy district coroner.
In deciding whether Dr. Leitch took the appellant’s blood sample acting as a private individual or as an agent of the state, we think
Commonwealth v. Tanchyn,
Applying the above rationale by analogy to the instant case yields contrasting results. The blood sample was not taken for the benefit of the patient, but for the sole purpose of having a blood alcohol test conducted. No medical use was made of the aрpellant’s blood sample; on the contrary, it was sent to a laboratory for a blood alcohol test, and the laboratory was instructed to send the results to the Anderson County sheriff. The coroner himself directed the blood sample be taken. We are convinced the evidence of the blood alcohol test does not fall within the Burdeau rule.
Under the facts of the instant case, we conclude that Dr. Leitch obtained the appellant’s blood sample acting as deputy district coroner — an agent of the state. Consequently, this “search” was subject to the protection against unreasonable search and seizure guaranteed by Section 15 of our Bill of Rights and the Fourth Amendment to the United States Constitution.
The state argues that because the results of the appellant’s blood alcohol test came into evidence by stipulation, he is bound thereby. Further, the state contends that appellant’s failure to object at trial to the admissibility of his blood test results now bars the question of admissibility from being considered on appeal.
The stipulation and absence of objection at trial as to the blood test’s admissibility appear to have influenced the district court’s decision. At the proceedings on November 1, 1974, the court stated:
“Of course, I am also aware, as [the prosecutor] pointed out, the blood test came into evidence by stipulation and I am a little concerned as to, even if it is bad evidence, if it is in by stipulation and the Defendant hasn’t raised any objection to it, how can I do otherwise.
“I realize there might be a point at which you wouldn’t have this information. I don’t 'think there was any indication on the part of anybody that one was trying to wood shed the other, I don’t get that impression at all.
“I might as well go ahead and announce my findings at this point, gentlemen, and there is, of course, time for a new trial for this Defendant if he disagrees.”
The pertinent portion of the stipulation which was read into the record at trial with thе approval of both parties, is as follows:
“It is further stipulated by and between tihe parties through their respectivecounsel that the results of certain scientific examinations performed upon the blood of the Defendant Jerry Gordon, and the blood, urine, and gastric contents of both Randy L. Rugg and Kathleen A. Frank, the decedents, and as embodied in written form which we now submit to the Court marked State’s Exhibit A, may be admitted into evidence without further identification by either of the parties and without objection of the other as to the identity or chain of custody of such samples or specimens which were the subject of the examination.
“And further, that the parties stipulate that such examinations were performed by competent and qualified, properly educated and experienced technicians, using such procedures and techniques as are generally recognized to yield reliable and accurate results.
“And that the contents of the said written reports being, State’s Exhibit A, are true and correct.” (Emphasis added.)
While it is true that a stipulation freely made is ordinarily binding on the district court and the litigants unless certain circumstances are shown to justify rеlieving a party from such stipulation (see,
State v. Craven,
The question then becomes whether the objection was timely. Appellant’s memory of the circumstances in connection with the taking of his blood sample was hazy. As indicated, he was not aware before trial that his blood sample was taken before he was placed under 'arrest. At the trial, through the tеstimony of the arresting officer and the deputy district coroner, the appellant first learned of the circumstances which he asserts render the taking of his blood sample an impermissible search thereby making the results of his blood alcohol test inadmissible. No objection to the test’s admissibility was raised at the trial on October 3. The appellant rested his case late in the afternoon, and the parties agreed to forego final argument at that time. The court took the case under advisement and directed the parties to file briefs. The parties agreed to incorporate their final arguments in the briefs requested
Ordinarily, failure to make timely, specific objection to the, admission of evidence will bar consideration of the admissibility question on appellate rеview. (E. g.,
State v. Estes,
Where, as here, trial is by the court rather than to a jury, on appeal we indulge in the presumption that the district court, in reaching its final decision, considered only evidence which was properly admissible unless the oontrary is shown by the record. See
State v. O’Neal,
In the instant case, the record on its fаce rebuts this presumption. It is clear from the record the district court did rely on the results of the appellant’s blood test in reaching its decision.
In
State v. Fleury,
“In applying the Kansas harmless-error rule ( K. S. A. 60-261 . . .) to a federal constitutional error a court must be able to declare the federal constitutional error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. (Following Chapman v. California,386 U. S. 18 ,17 L. Ed. 2d 705 ,87 S. Ct. 824 .)”
Applying this standard, we reach the inescapable conclusion that the ■erroneous admission of the blood test results was not harmless. Obviously, the test result was itself inoriminating. Further, evidence as to the effect of the alcoholic beverages upon appellant’s ability to operate his automobile was conflicting, and the test results 'corroborated what evidence there was that tended to show appellant was intoxicated. Moreovеr, for purposes of determining whether decedents^ deaths were the proximate result of appellant’s negligent operation of his vehicle, the blood test evidence weighed against the evidence of drugs found in decedents’ bodies and 'the fact the collision occurred on appellant’s side of the road. It is impossible for the court to say beyond a reasonable doubt there is little likelihood the blood test evidence did not change the results of the trial. We are of the opinion the error was highly prejudicial and requires reversal of the convictions for driving while intoxicated and vehicular homicide.
Our conclusion that some, evidence tending to show the appellant’s negligence was improperly considered by the district court also requires a reassessment of the proximate cause of the decedents’ deaths. While contributory negligence is no defense in a prosecution for vehicular homicide, it is a circumstance to be considered along with all other evidence to detentóme whether appellant’s conduct was or was not the proximate, cause of decedents’ deaths. In some instances, a decedent’s contributory negligence may have been a substantial factor in his death and a superseding cause thereof; it may have intervened between a defendant’s conduct and the fatal result so as to be itself the proximate cause.
(See State v. Betts,
One further point requires brief сomment. The state contends it must prove, only simple negligence to conviot appellant of vehicular homicide. The appellant argues the statute requires a higher degree of negligence.
“(1) Vehicular homicide is the killing of a human being by the operation of an automobile, anplane, motor boat or other motor vehicle in a manner ■which creates an unreasonable risk of injury to the person or property of another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.” (Emphasis added.)
Wе think the Legislature meant something more than simple negligence when it defined the standard of conduct condemned under the vehicular homicide statute.
The vehicular homicide statute (
We view the change made to the statute in 1972 to be, in essence, no change at all. “Substantial” and “material” have been construed as synonymous terms.
Lewandoski v. Finkel,
From the foregoing, it follows that the cases decided under the negligent homicide statute (
The appellant’s conviction for transporting an open container (
It is so ordered.