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STATE v. McNAUGHT1/17/1986
ot do irreparable damage to the defendant's right to a fair trial by an impartial jury.
The record in the case now before us does not show the factual circumstances present on this issue. The record is absolutely silent regarding the number of MADD and SADD members attending the trial or how many of them wore buttons. During oral arguments in this case, defense counsel contended that there were always 20 to 30 members of MADD in the courtroom. The prosecutor stated that there were only three to four such persons present wearing buttons. Defense counsel contended that one juror voiced some concern about the incident to Judge Vickers after trial. The prosecution denied that allegation. The record does not contain an affidavit or the testimony of any person that the jurors showed any concern about the matter.
We have carefully considered this issue and concluded that the defendant has failed to show that he was prejudiced in any way by the wearing of MADD and SADD buttons by spectators in the courtroom. A reading of the record and a consideration of the verdicts of the jury in this case show that the members of the jury carefully considered the evidence and were not prejudiced against the defendant. As noted heretofore in the opinion, the jury acquitted the defendant of involuntary manslaughter, the only felony charge, and also acquitted the defendant of leaving the scene of an injury accident, failure to render aid, and failure to report an injury accident. The jury found the defendant guilty
of vehicular homicide and driving under the influence of alcohol, both misdemeanors. The trial judge was present at all times throughout the trial and had a full opportunity to observe the conduct of the spectators and consider any effect they might have on the jury. We cannot say as a matter of law that the trial court abused its discretion in refusing to require the spectators to remove their buttons or in denying the defendant's motion for a new trial. Under all of the circumstances, we have concluded that the defendant has failed to show that he was prejudiced in any way by the conduct of the spectators, and we hold that he is not entitled to a reversal of his conviction based upon this issue.
The fourth issue raised on appeal is that the trial court erred in refusing to admit evidence offered by the defense that the defendant had taken and passed a polygraph test. The rule in Kansas is that, in the absence of a stipulation between parties, the results of a polygraph examination are not admissible into evidence. See State v. Mason, 238 Kan. 129, 708 P.2d 963 (1985), citing many prior Kansas decisions. It has been said that one of the primary reasons for disallowing polygraph evidence is the weight commonly placed upon the evidence by the jury, which results in the jury function being usurped. State v. Martin, 237 Kan. 285, 293, 699 P.2d 486 (1985). In the present case there was no stipulation, and the trial court did not err in refusing to admit the results of the polygraph examination.
The fifth point raised on the appeal is that the trial court erred in admitting the results of the intoxilyzer test into evidence. The defendant first contends that the machine was not shown to be sufficiently accurate or reliable to allow the results of the breath test to be considered by the jury. The Kansas Court of Appeals has addressed the foundation necessary to admit the results of such a test, stating that testimony which establishes a breathalyzer test machine has been approved and certified by the State as of the date of the test is sufficient foundation testimony to establish the validity of the test results from the machine. City of Shawnee v. Gruss, 2 Kan. App. 2d 131
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