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STATE v. PARSON10/27/1979
The opinion of the court was delivered by
Appellant Steven Parson appeals from a conviction of involuntary manslaughter (K.S.A. 21-3404) in a trial to the court. The charge stems from an automobile accident in which his car
collided with a car driven by a Mr. Steven R. Baptist. Baptist was killed in the accident. Appellant appeals. We affirm.
The undisputed facts are as follows: Appellant Steven Parson and Steven R. Baptist were involved in an automobile accident at about 3:40 a.m. on February 4, 1978. It appeared to be almost a head-on collision on South Broadway in Wichita. There were no other persons involved and no eye witnesses. The officers arrived at 3:42 a.m. and thereafter Parson and the body of Steven Baptist were taken by ambulance to St. Joseph Medical Center in Wichita. Parson was examined by Dr. Thomas Hayes, emergency room physician, at 4:25 a.m. Hayes ordered urine and blood alcohol tests be given the defendant as well as a blood count. The blood alcohol test showed appellant's blood alcohol level to be 0.14, indicating intoxication pursuant to K.S.A. 8-1005(b).
Appellant was charged with involuntary manslaughter (K.S.A. 21-3404). The information reads:
"Steven W. Parson, did then and there unlawfully, willfully, unintentionally kill a human being, to-wit: Steven R. Baptist, while in the commission of an unlawful act not amounting to a felony, to-wit: drive a motor vehicle, to-wit: 1970 Oldsmobile bearing license #SG-R-6986, at approximately 162 feet north of 63rd Street South on South Broadway, Sedgwick County, Kansas, while under the influence of intoxicating liquor, contrary to K.S.A. 8-1567, and did drive the aforedescribed motor vehicle left of the center lane at said location, contrary to K.S.A. 8-1514; contrary to K.S.A. 21-3404 (Involuntary Manslaughter, Class E Felony)."
Appellant waived a jury trial. The court tried the case and found Parson guilty as charged and sentenced him to prison for not less than one nor more than five years, then granted him probation. From this judgment appellant appeals.
Appellant claims the trial court erred in admitting Dr. Hayes' testimony because it is barred by the physician-patient privilege under K.S.A. 60-427. He argues the privilege is applicable in a misdemeanor action and seeks to advance the novel theory that because the felony with which he is charged is made up of "three entirely separate and distinct charges only one of which is a felony," the State cannot use the physician's testimony to prove the misdemeanors. Without that testimony, the felony charge cannot be proven. His argument is without merit. K.S.A. 60-427(b) clearly states the privilege may be invoked only "in a civil action or in a prosecution for a misdemeanor. . . ." See State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975); State v.
Campbell, 210 Kan. 265, 500 P.2d 21 (1972). This case is neither a civil action nor a prosecution for a misdemeanor. The physician-patient privilege may not be invoked.
Appellant next asserts the blood alcohol test result was not admissible in the absence of a showing that the test procedure was accepted as reliable by the witness and by experts in the field. As a second part of this issue, appellant urges the blood alcohol test results contain no probative value because the sample of blood was taken approximately one hour after the accident.
Appellee argues these issues are not before the court because appellant failed to raise timely objections during trial. Appellant's objections to the issues were made for the first time in his argument for judgment of acquittal.
The contemporaneous objecti
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