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STATE v. McNAUGHT1/17/1986
re visible from a distance of 100 to 600 feet as required by K.S.A. 8-1592. Such evidence was not contemplated by the prosecution nor were the tests conducted until after defendant's voir dire examination stressed the lack of visibility of the victim's bicycle. We find no error in the admission of this evidence. The test results were relevant on the issue whether the bicycle reflectors satisfied the requirement of the statute that they be visible from 100 to 600 feet to an oncoming vehicle with low beam lights. The jury was made well aware that the test was conducted on level ground using stationary vehicles while the accident occurred on a hill while both the bicycle and defendant's car were moving. We hold that the trial court did not commit error in admitting the evidence.
The seventh issue on the appeal is whether the trial court erred in allowing the testimony of Steve Hale and Eileen Burnau, whose names were not endorsed on the information. Late endorsement of witnesses is covered by K.S.A. 1984 Supp. 22-3201(6). In State v. Costa, 228 Kan. 308, 315, 613 P.2d 1359 (1980), it was held that the endorsement of additional witnesses on an information is a matter of judicial discretion and will not be the basis for reversal absent proof of an abuse of discretion. The test is whether or not the rights of the defendant were unfairly prejudiced by the late endorsement. The purpose of the endorsement requirement is to prevent surprise to the defendant and to give him an opportunity to interview and examine the
witnesses for the prosecution in advance of trial. See also State v. Royal, 234 Kan. 218, 670 P.2d 1337 (1983). The record shows that the name of Steve Hale was on a list of Soldier Township personnel furnished to the defense prior to the preliminary hearing. The defendant subpoenaed Hale for the preliminary, although Hale did not testify. The trial court permitted the prosecution to call Steve Hale as a witness but provided the defense an opportunity to interview him before he testified. We hold that, under the circumstances, the defendant was not prejudiced. Eileen Burnau testified at the preliminary hearing where she was cross-examined by the defense. She did not testify any differently at the trial. Under the circumstances, we hold that the trial court did not abuse its discretion in permitting her to testify at the trial.
The eighth and ninth points raised on the appeal concern the trial court's refusal to give certain instructions requested by defendant and also certain instructions submitted to the jury. We have considered the arguments of counsel and find no error. The propriety of instructions given to the jury is to be gauged by consideration of the instructions as a whole; each instruction must be considered in conjunction with all the others. State v. Price, 233 Kan. 706, 664 P.2d 869 (1983). Considered as a whole, the instructions as given adequately instructed the jury on all phases of the case.
The tenth point raised is that the trial court erred in its answers to questions asked by the jurors during deliberations. We cannot say that the trial court erred in any way in its responses to the two questions presented to the court by the jury.
The eleventh issue on appeal is whether the trial court erred in overruling defendant's motion for dismissal or, in the alternative, defendant's motion for acquittal. Simply stated, the defendant challenges the sufficiency of the evidence to sustain the two guilty verdicts in this case. A trial judge, passing on a defendant's motion for judgment of acquittal or for dismissal because of insufficiency of the evidence, must determine whether upon the evidence, giving full play to the right of the jury to
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