Tuesday, September 06, 2011

DUI Law - Kansas Jury Improperly Instructed on DUI

In State of Kansas v. Stieben, --- P.3d ----, 2011 WL 3209875 (Kan.) the defendant went to jury trial for DUI. 28 minutes into deliberations, the jury sent a note to the judge:

‘Did Defendant cross the fog line before the officer turned around?’  

Contrary to the defendant's recollection and objection, the judge answered the question:

“THE COURT: That's my recollection. I have it written down. I'm going to write yes. And, with no more explanation than that." 

Trooper Hemel's actual testimony was: “The vehicle had also drifted toward the fog line when it was coming at me.” On cross-examination, he testified that when he first encountered Stieben he did not see any traffic violations and saw no conduct that would have led him to stop her. 

The Supreme Court of Kansas found that the response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22–3420(3). K.S.A. 22–3420(3) explicitly allows the court to have the testimony read or exhibited to the jury, and where the parties were in disagreement about the testimony, such a direct showing to the jury would have excused the court from relying on its notes and memory. 

Second, it was held that the trial court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.

The Supreme Court distinguished the different functions a trial court must perform when there is a question of law and when there is a question of fact:

Where the jury is “obviously confused” on a point of law, the court has an obligation to provide further instruction, even if the original jury instruction would normally have been sufficient. The failure of the trial court to give the jury additional information was clearly prejudicial and denied the defendant a fair trial. See State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering questions “accurately”). We find that the statutory scheme similarly contemplates a clarifying answer when the jury is obviously confused on a point of fact, and K.S.A. 22–3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion. 

"The second point of error relates to the respective functions of the trial court and the jury. The jury asked the trial court to resolve a question of fact, and the court complied with the jury's request. The court could have directed the jury instead to rely on its collective memory, or the court could have read the testimony back to the jury. The court elected, however, to inform the jury that Stieben crossed the fog line as the trooper approached her. 

"The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995] ). The prosecution not only bears the burden of proving all the elements of the offense charged, it must also persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). 

"An instruction that includes a factual determination made by the trial court “invades the province of the jury as the factfinder” and violates the defendant's rights to have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772, 80 P.3d 1113. 

"It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. “ ‘ “Whatever probative force the government's proof possessed, the jury had the power to accept or reject it—or to find it insufficiently persuasive. The defendant had a correlative right to free and unhampered exercise by the jury of all its powers.” [Citation omitted.]’ ” Brice, 276 Kan. at 770–71, 80 P.3d 1113 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir.1988] ). 

"It is for the jury alone to determine the credibility of eyewitnesses. State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the weight or credibility of evidence because those matters belong strictly to the province of the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the court itself went where an expert witness may not go: it did not just “testify” about the credibility of certain evidence, it used its judicial authority to make the finding of fact for the jury.

Concluding that the error was significant, the Supreme Court stated": "This usurpation of the jury's role was especially egregious because the court provided the jury with an answer contrary to the only evidence presented."

A new trial was thereafter granted.

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