State v. Lewis

327 P.3d 1042, 50 Kan. App. 2d 405, 2014 WL 2783801, 2014 Kan. App. LEXIS 40
CourtCourt of Appeals of Kansas
DecidedJune 20, 2014
DocketNo. 108,147
StatusPublished
Cited by1 cases

This text of 327 P.3d 1042 (State v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lewis, 327 P.3d 1042, 50 Kan. App. 2d 405, 2014 WL 2783801, 2014 Kan. App. LEXIS 40 (kanctapp 2014).

Opinion

Leben, J.:

Aaron Lewis appeals the convictions that arose out of a high-speed police chase. He argues that a paramedic should not have been allowed to provide expert testimony because the substance of the testimony wasn’t disclosed to him 90 days before trial and the prosecutor didn’t provide an evidentiary foundation for the paramedic to provide expert testimony. But the 90-day requirement for disclosure is part of the Kansas Rules of Civil Procedure and does not apply to a criminal case like this one. And the paramedic testified that he had extensive training and experience with how drivers and passengers are injured in auto accidents— something he relied upon in his work to look for hidden injuries that needed immediate treatment. The district court did not err in allowing the paramedic’s testimony.

Lewis also claims that the prosecutor made improper comments that made the trial unfair, that the district court erred in its jury instructions, and that the district court erred in considering Lewis’ [406]*406past criminal convictions when determining his sentences for the new offenses he was convicted of in this case. We have examined each of these claims, but we find no error. We therefore affirm tire district court’s judgment.

Factual and Procedural Background

One of the key issues at trial was whether Lewis was the driver or the passenger of the car that police pursued in the high-speed chase. Accordingly, we will set out in some detail the evidence presented to the jury about what happened, focusing on the evidence regarding each of the individuals who were apprehended after the car chase ended.

The events at issue here began on a Saturday morning in December 2006 when Kansas Highway Patrol Trooper David Morrison noticed that the windows on a black Pontiac Firebird appeared to be tinted more than allowed under Kansas law. When Morrison turned on his flashing lights to pull the car over, its driver kept going. Morrison and several other law-enforcement officers chased the Firebird at high speeds through Wyandotte County.

Eventually, the Firebird headed the wrong way on the Turner Diagonal, where it first sideswiped one car before colliding head-on with another. A few seconds after the Firebird came to a stop, a man wearing a dark jacket exited its passenger door and began to run away. Morrison and another highway patrol trooper, Curt Gabbert, chased the man. They apprehended him and later determined that he was Kenneth Evans. He had an abrasion on his forehead.

Shawn Okon, who witnessed the accident, stated that after the first man left the car, he saw a man sitting in the driver’s seat of the Firebird, lying over the center section of the car. Okon testified that the man in the driver’s seat then got out.

Trooper Michael Hamilton also reported to the scene. After he got out of his car, a witness pointed down the hill next to the road and said, “He ran down there.” Hamilton saw a man pounding on the rear door of a duplex about 50 yards from the road. The man was only wearing one shoe, a white tennis shoe. Hamilton ran to[407]*407ward the man, yelling, “Police!” and “Get on the ground!” Hamilton said the man was staggering “as if his legs were badly hurt.”

Hamilton saw the man stumble into the duplex and noticed that his shoe fell off in the doorway. Hamilton yelled, “Police, open the door!” and then lacked the door open. Another trooper, Matthew Brooks, joined Hamilton inside the duplex, and they placed the man, later identified as Lewis, in handcuffs. Lewis had a broken rib, bruised lung, and abrasions to his right and left shins.

Brooks found a plastic baggie containing a white, powdery substance in Lewis’ jeans pocket. The troopers also found a white shoe in die Firebird, wedged between the brake pedal and the floorboard.

The State charged Lewis with aggravated battery, possession of cocaine, fleeing or eluding a police officer, obstructing official duty, and reckless driving. All of the charges were tried to a jury, and Lewis was convicted. On appeal, Lewis raises claims relating to tire admission of a paramedic’s testimony, to statements made by the prosecutor at trial, to jury instructions, and to his sentencing.

As for the paramedic’s testimony, defense counsel made a pretrial motion to keep out some potential evidence from the paramedic, Richard Christy, at trial — what’s called a motion in limine. In that motion, the defense orally argued that the State had not provided proper notice of any expert opinions Christy might give, citing a notice provision of the Kansas Rules of Civil Procedure, K.S.A. 2013 Supp. 60-226(b)(6)(A), (C). Under that provision, expert testimony generally must be disclosed 90 days before trial. The district court ruled that Christy could provide nonexpert, or lay, testimony because he was at the scene of the accident but could not offer conclusions on whether Lewis had been driving the car on the date in question.

During Christy’s direct examination by the State, defense counsel objected to Christy’s testimony. The court overruled the objection, and Christy described his experience and training as a paramedic who regularly responds to automobile collisions. He told tire jury that in a frontal collision, people in a car are either thrown “up” or “down.” Christy said that after observing the damage to the windshield on the passenger side of the Firebird, the passenger [408]*408had likely gone “up” and suffered an abrasion-type injury to the head. He then testified that Evans, and not Lewis, had an abrasion on his forehead. Christy also testified that the steering wheel and driver s-side floorboard had been damaged and that a white shoe had been left wedged in the “accelerator area,” indicating that the driver of tire car had been thrown “down” under the steering wheel. Christy said that he would expect the driver of the car to have had fractured ribs or torso injuries as well as abrasions on his knees from hitting the dash components.

Another of Lewis’ claims on appeal is that the prosecutor made improper statements at trial that are significant enough to order a new trial. The first such statement came during jury selection, as the prosecutor discussed tire concept of reasonable doubt. To convict, of course, the jury must find tire defendant guilty beyond a reasonable doubt. The prosecutor made statements apparently trying to distinguish between eliminating reasonable doubt and eliminating all doubt:

“[I]s anyone here going to hold me to a standard of proof that is more than beyond a reasonable doubt?
“I often hear people say they weren’t a hundred percent sure. Does everyone understand you don’t necessarily have to be a hundred percent sure? You can have a little doubt. But if it’s not reasonable, that’s not beyond a reasonable doubt.”

After those remarks, the district judge advised the prosecutor— in a bench conference outside the jury’s hearing — to be careful in his remarks: “[Y]ou are getting pretty close. I know what you’re trying to do is tell them it’s not beyond any doubt, but let’s be careful.”

Lewis also notes a statement the prosecutor made in closing argument. The prosecutor said that “[njumerous people” said an officer identified himself and told Lewis to “[g]et on the ground.”

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Related

State v. Lewis
302 Kan. 1017 (Supreme Court of Kansas, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
327 P.3d 1042, 50 Kan. App. 2d 405, 2014 WL 2783801, 2014 Kan. App. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-kanctapp-2014.