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STATE v. McNAUGHT1/17/1986
The opinion of the court was delivered by
This is a direct appeal by the defendant, Dr. Thomas R. McNaught, from jury convictions of vehicular homicide (K.S.A. 21-3405), a class A misdemeanor, and driving under the influence of alcohol (DUI) (K.S.A. 1984 Supp. 8-1567), a class A misdemeanor. The defendant was acquitted of involuntary manslaughter (K.S.A. 1984 Supp. 21-3404), leaving the scene of an injury accident (K.S.A. 8-1602), failure to render aid (K.S.A. 1984 Supp. 8-1604), and failure to report an injury accident (K.S.A. 1984 Supp. 8-1606). Following the convictions, the trial court imposed sentences on each count and the defendant appealed.
This case arose out of a tragic automobile accident which occurred on July 29, 1984, at about 8:32 p.m. on Northwest 46th Street north of the city of Topeka in Shawnee County. Just prior to the accident, Kathleen (Kathy) Bahr was riding a bicycle in a westerly direction. The bicycle was struck in the rear by an automobile driven by the defendant in a westerly direction on 46th Street. The evidence showed that, following the impact, Kathy Bahr's body struck the hood of defendant's vehicle, breaking the right side of the windshield, and she was then thrown over the back of the car. The bicycle became attached to
the front side of the defendant's vehicle. Defendant testified that, just prior to the accident, he had stopped at 46th Street and Rochester Road and then proceeded west on 46th Street with his cruise control set at 50 to 55 miles per hour which was within the posted speed limit. He testified that looking ahead he could see no objects when suddenly there was a bang on his windshield. He thought that someone must have thrown a rock or brick at his car and he did not want to stop three or four miles from home on a dark highway. It reminded him of a previous experience he had had in 1958 when a rock was dropped from an overpass onto his car as he was driving. Dr. McNaught felt that he should go home and report the occurrence to the police. He kept driving and watching the fracture move across the windshield. He was beginning to think he should stop when he saw a patrol car's red lights in his rear view mirror. Defendant then stopped his car and remained inside until instructed by Deputy Sheriff Jeff Ritchie to open the car door.
Deputy Ritchie testified that he first observed defendant's vehicle on 46th Street with its bright lights on, traveling at a high rate of speed and emitting sparks from under its right side. The officer flashed his bright lights on and off but received no response from the oncoming vehicle. Ritchie continued to notice the sparks as the vehicle passed. Ritchie then turned his car around and pursued the vehicle. He caught up with it approximately one mile down the road. The vehicle stopped in the middle of the roadway without pulling over to the shoulder. Defendant asked the officer what the problem was. The officer looked at the defendant's vehicle and noticed a smashed windshield covered with blood and hair. Officer Ritchie showed the defendant a bicycle which had fallen from underneath defendant's car as it hit a bump just before it came to a stop. The defendant said that someone had thrown a brick at his vehicle approximately one mile back.
Shortly thereafter, Trooper Thomas Wilson of the Kansas Highway Patrol arrived at the scene to assist Ritchie. Trooper Wilson noticed that defendant's eyes were watery and bloodshot, and that he was swaying when walking. The trooper noticed a mild odor of alcohol on defendant's breath. Trooper Thomas Wilson gave the defendant a horizontal gaze nystagmus test. Trooper Wilson then placed defendant under arrest for driving
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