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State v. Hobbs7/11/2003
tion was arbitrary, fanciful, or unreasonable. State v. Lessley, 271 Kan. 780, 791, 26 P.3d 620 (2001). K.S.A. 2002 Supp. 8-1567(a)(2) provides that evidence of a blood alcohol concentration of .08 or more establishes a per se DUI violation, but a DUI violation may be established under other subsections of 8-1567(a) without regard for the alcohol concentration in the person's blood or breath. Hobbs was not charged under K.S.A. 2002 Supp. 8-1567 with DUI, per se or otherwise, but the jury was instructed on involuntary manslaughter while driving under the influence as a lesser offense of murder in the second degree. Hobbs has not shown that admission of the result of his blood alcohol test was unreasonable in the circumstances. It also appears that any error in admission of the test result was harmless to Hobbs. On Count I, the jury not only found Hobbs not guilty of murder in the second degree (killing Stevenson unintentionally but recklessly under circumstances showing extreme indifference to the value of human life) but also not guilty of involuntary manslaughter while driving under the influence.
Hobbs next argues that the court should have declared a mistrial when a juror had contact outside the courtroom with a State's witness.
During the noon recess of trial on the day when Officer James R. Todd was testifying for the State, one of the jurors approached the witness. The juror asked Todd, "With all that equipment, you must have a large truck to carry all that in. Would you have a semi?" Todd responded, "No, sir. We have a Peterbilt truck that has a motor home attachment on it." No other statements were made by Todd. The conversation took place in the hallway with a number of other people around. After their brief discussion of the truck, Todd excused himself and reported the incident to the prosecuting attorney.
After hearing Todd's testimony about the incident, counsel for Hobbs requested a mistrial. Stating his impression that it "was a very innocent contact" on a topic "that doesn't have anything to do with this case," the district judge denied the motion for a mistrial. Counsel for Hobbs requested, in the alternative, the opportunity to question the juror "in camera, with counsel present, to determine whether or not that juror has a propensity to be at least prejudiced toward the State in this case, considering the fact that he has contacted and discussed an issue with a State witness." The district court denied the request.
Communication between a juror and a witness is not a ground for reversal unless the communication is shown by the defendant to have substantially prejudiced his or her rights. State v. Whitesell, 270 Kan. 259, 286, 13 P.3d 887 (2000); State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621 (1989) (overruled on other grounds). A trial court's denial of a motion for mistrial on the basis of juror misconduct is subject to an abuse of discretion standard of review. 270 Kan. at 286.
Hobbs complains that the trial court's refusing to question the juror or to permit defendant's counsel to question the juror about his communication with the witness prevents him from satisfying his burden of proving prejudice. In Macomber, the court rejected substantially the same argument. There, Poe, a witness for the State was observed talking to a juror as they left an elevator together. 244 Kan. at 406-07. "Poe testified if he said anything to the juror, it was simply a comment such as 'go ahead' to let the juror exit ahead of him. He also testified a highway patrolman was in the elevator at the time." 244 Kan. at 407. The trial court found no impropriety and refused to examine the juror "'about a non-event.'" 244 Kan. at 407. Reviewing the issue on appe
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