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CITY OF DODGE CITY v. HADLEY4/18/1997
failed to perfect the appeal. We find Shortey to be controlling and will consider the appeal on its merits.
We first consider the admission of the opinion testimony of the police officers regarding Hadley's intoxication. Hadley suggests that the court's review of this issue is unlimited because it involves a conclusion of law. In fact, the measure applied by this court to questions of the admissibility of opinion testimony is as follows:
"The admissibility of expert testimony is a matter to be determined by the trial court in the exercise of its discretion. The trial court's determination will not be overturned absent an abuse of such discretion which results in prejudice to the party whose testimony was excluded. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. 3, 822 P.2d 591 (1991)." Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996).
Hadley relies on State v. Steadman, 253 Kan. 297, 855 P.2d 919 (1993), for the proposition that a police witness' opinion about defendant's guilt is inadmissible. There, the court stated:
"In a criminal trial, the defendant has the right to have the jury determine from the evidence whether the defendant is guilty or not. The police witnesses can testify from their experience as to a role the defendant played in an illegal enterprise — they cannot testify that in their opinion the defendant was guilty of the crime." 253 Kan. at 304. In Steadman, the police witnesses were permitted to testify "that in their opinion the defendant was guilty of the crime and exhibited the pressure felt by a guilty person, other persons interviewed were not guilty of the crime, and there was sufficient probable cause for the issuance of a search warrant for the defendant's residence." 253 Kan. at 304. For example, one officer testified with regard to Steadman, "`In my opinion he killed Mr. Haislip."' 253 Kan. at 300. The court concluded that the opinion testimony deprived Steadman of a fair trial and consequently reversed his conviction of second-degree murder. We do not find Steadman to be applicable in the present case.
K.S.A. 60-456 governs the admissibility of opinion testimony and provides:
"(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
"(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
"(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.
"(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact."
In State v. Shultz, 225 Kan. 135, 587 P.2d 901 (1978), a former deputy county attorney was permitted to testify as to the defendant's sanity at the time he committed the offense. This court found no error, stating:
"It has been the rule in this state for many years that nonexpert witnesses who are shown to have had special opportunities to observe may give opinio
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