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State v. Hobbs7/11/2003
say rule are not automatically admissible but rather are subject to other safeguards of trustworthiness and relevance as well as the discretion of the trial court. However, the lack of trustworthiness or relevance was not the reason given by the trial court for excluding the report. The report speaks for itself, is admissible under K.S.A. 2002 Supp. 60-460(o), and is relevant. There is no question that Jathan Stevenson died as a result of injuries resulting from a motor vehicle accident. Dr. Pojman, deputy coroner, testified as to the extent of Stevenson's injuries and the cause of death. He testified that Stevenson
"died from multiple crush injuries which were received during the automobile accident. There was a combined effect of blood loss into the lung area, and also aspiration of blood. That means blood from the fracture of the jaw is brought down, and instead of being swallowed, brought into the airway and into the lungs, and basically the blood will fill the lungs causing suffocation."
As previously noted, the jury found Hobbs guilty of involuntary manslaughter, i.e., that he unintentionally killed Stevenson and it was done recklessly. The trial court's exclusion of the report was error. However, under the harmless error rule of K.S.A. 60-261, a trial court's error in the admission of evidence is not grounds for reversal unless failure to set aside the verdict appears inconsistent with substantial justice. State v. Mullins, 267 Kan. 84, Syl. 4, 977 P.2d 931 (1999). Here, the exclusion of the coroner's report did not prejudice the substantial rights of Hobbs and was not inconsistent with substantial justice. The error was harmless.
Hobbs' final argument relative to his convictions is that the prosecutor's remarks in closing argument about the lack of evidence of any product malfunction improperly shifted the burden of proof to the defendant.
On cross-examination of Officer Pearce, defense counsel introduced the subject of the tires on the Ford Explorer. Counsel asked whether the witness was aware that the type of tires on the Explorer were the subject of a recall that began shortly after the accident. Counsel asked whether it was warm on the date of the accident and then asked whether the witness was aware that the tires have a propensity for failing in warm weather. Counsel asked whether the tires had been removed from the Explorer for inspection and testing, and Pearce answered that they had not. The cross-examination concluded with the following questions and answers:
"Q: Did you investigate other causes of this accident like mechanical defect failure, the tires ?
A: I know I didn't.
Q: Don't you think that would be a fair thing to do in order to be fair to Mr. Hobbs, give him the benefit of the doubt and say, 'Let's determine whether there may have been another cause of this accident?'
Yes."
During closing argument, defense counsel stated:
"You need to look at Officer Pearce's testimony. I asked him, I said, 'Do you think it was fair to Patrick Hobbs to not even check those tires that you know as well as everybody else knows are causing accidents and death all over the country?' And he said no, that wasn't fair. It wasn't fair. If the investigation isn't fair, how can anything after the investigation be fair? If you can't trust what the lead investigator does from day one when he's busy running around, getting everybody to say I got a white T-shirt with his blood on it instead of looking at causes of the accident, how can you how can you trust the rest of their case? If they're going to charge him with the ultimate crime, they need to do the ultimate investigation. S
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