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City of Colby v. Granston5/12/2000
Appeal from Thomas District Court; GLENN D. SCHIFFNER, judge.
Affirmed.
Ross R. Cranston was convicted in the Municipal Court of Colby, Kansas, for driving under the influence , obstruction of legal process, and failure to maintain a single lane in violation of the Colby Municipal Code. On appeal to the district court, a jury found him guilty of the same offenses. On subsequent motion, the district court vacated the conviction for obstruction of legal process.
On appeal, defendant raises three issues: (1) Did the district court err by failing to give his proposed jury instruction? (2) Was there sufficient evidence to support his conviction of driving under the influence ? (3) Did the trial court err in admitting hearsay testimony in violation of his Sixth Amendment right of confrontation? We have considered each of these issues and affirm.
The essential facts are these: On July 25, 1996, defendant was pulled over at 12:35 a.m. after a Colby police officer observed defendant's vehicle make a wide left turn, drift over the line dividing two southbound lanes and suddenly jerk back at least three times, and drift over the fog line onto the right shoulder and then jerk back.
Defendant admitted to the officer he had consumed "a couple of beers," and the officer noticed that defendant's eyes were bloodshot and glassy and that he smelled of alcohol. A back-up officer arrived and activated a tape recorder. The tape recorder captured a later exchange when defendant refused to take field sobriety tests and struggled with the officers, and his wife and passenger, Dana Cranston, leaned out of the driver's side window and yelled at him to cooperate. Defendant was ultimately taken to the station and tested. At 1:58 a.m., his breath alcohol concentration was measured at .129, well in excess of the statutory limit of .08.
Jury Instruction
In considering defendant's first issue regarding his requested jury instruction, we are
"required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]" State v. Mims, 264 Kan. 506, 514, 956 P.2d 1337 (1998).
The district court gave the following instruction from PIK Crim . 3d 52.13 as Instruction No. 6: "You must not consider the fact that the defendant did not testify in arriving at your verdict."
Defense counsel objected to this instruction and requested the following instruction:
"It is the constitutional right of a defendant in a criminal trial that he may not be compelled to testify. The decision as to whether he should testify is left to the defendant acting on the advice and assistance of his attorney. You must not draw any inference of guilt from the fact he did not testify, and this fact must not be discussed by you or enter into your deliberations in any way. In deciding whether or not to testify, a defendant may choose to rely on the state of the evidence or upon the failure, if any, of the prosecution to prove every essential element of the charge against him."
At trial, defendant argued Instruction No. 6 was constitutionally inadequate to inform the jury that he could not be compelled to testify. The district court overruled the objection. Although the remainder of the instructions given at trial included the concept of the State's burden of proof, they nowhere stated that defendant could not be compelled to testify or th
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