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State v. Hobbs7/11/2003
al, this court stated:
"It is the usual practice to question the juror involved in complaints alleging misconduct. [Citations omitted.] . . .
"However, the determination of a witness' credibility in such circumstances is within the trial court's discretion. The court believed Poe's testimony and, as an experienced observer of the circumstances surrounding the case, did not believe impropriety occurred. Macomber had the opportunity to obtain the testimony of the juror in support of his motion for a new trial. This he failed to do. We conclude Macomber failed to sustain the burden of proving juror misconduct." 244 Kan. at 407-08.
Hobbs would distinguish Macomber on the ground that the communication between the juror and Trooper Todd, instead of being a "non-event," bore directly on Todd's investigation into the accident at issue. Hobbs is on the verge of trivializing his position by suggesting that a question about the size of the Trooper's vehicle has any bearing on the evidence and substance of the investigation into an accident that killed one young person and injured others. We agree with the trial court's view that it was an innocent contact on a topic unrelated to the prosecution.
Hobbs next argues that testimony that he had been ejected from Sandstone Amphitheater and a photograph of the deceased should not have been admitted into evidence.
As previously stated, the admission of evidence lies within the sound discretion of the trial court. A defendant asserting that the trial court abused its discretion bears the burden of showing that the trial court's action was arbitrary, fanciful, or unreasonable. State v. Lessley, 271 Kan. 780, 791, 26 P.3d 620 (2001).
Hobbs complains that the trial court erred by allowing the State to elicit testimony that Mr. Hobbs had been ejected from Sandstone Amphitheater. Two motel clerks testified that Hobbs explained his appearance by telling them he had been in a fight and had gotten kicked out of the concert at Sandstone. There was no objection to the first clerk's testimony. After the second clerk gave essentially the same testimony, defense counsel objected that the evidence was inadmissible pursuant to K.S.A. 60-455. The objection was overruled. A third State witness, someone who had ridden to Sandstone with Hobbs, testified that he saw security guards escort Hobbs out of the concert. Defense counsel's objection was overruled.
A timely objection to the admission of evidence at trial must be made in order to preserve that issue for appeal. K.S.A. 60-404; State v. Barksdale, 266 Kan. 498, 511, 973 P.2d 165 (1999). Because there was no objection to the first clerk's testimony, only the repetition of the evidence is a proper subject for review. Once the jury heard the first clerk testify that Hobbs said he had been ejected from Sandstone for fighting, the subsequent testimony added nothing prejudicial. Hobbs contends that the testimony prejudiced him by casting him in a bad light, but he offers no grounds for finding that the alleged prejudice did not arise from the unobjected testimony.
Hobbs also complains of the admission of a photograph of the head and a shoulder of the deceased. The State offered the photograph during the pathologist's testimony about his external examination of the body, which showed abrasions and lacerations concentrated around the face and upper neck. The trial court admitted the photograph as illustrating the doctor's testimony.
The admission of photographs in a homicide case is a matter within the trial court's discretion, and the trial court's ruling will not be disturbed on appeal absent a showing of an abuse of that discretion. Stat
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