State v. Osby

793 P.2d 243, 246 Kan. 621, 1990 Kan. LEXIS 112
CourtSupreme Court of Kansas
DecidedMay 25, 1990
Docket63,600
StatusPublished
Cited by20 cases

This text of 793 P.2d 243 (State v. Osby) is published on Counsel Stack Legal Research, covering Supreme Court 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. Osby, 793 P.2d 243, 246 Kan. 621, 1990 Kan. LEXIS 112 (kan 1990).

Opinions

The opinion of the court was delivered by

Six, J.:

Defendant, Michael F. Osby, appeals from his jury conviction of one count of aggravated kidnapping, K.S.A. 21-3421; one count of kidnapping, K.S.A. 21-3420; and one count of unlawful possession of a firearm, K.S.A. 21-4204. Osby asks that his convictions be reversed because of trial court error in

(1) limiting his voir dire of the jury panel;

(2) instructing the jury on the issue of drug use;

(3) limiting cross-examination as to the victim/witness’ drug use;

(4) excluding certain evidence relating to a different crime; and

(5) allowing the State to introduce testimony by two witnesses that was given at prior separate proceedings in which Osby was neither a party nor present.

We find no trial error requiring reversal and affirm.

FACTS

The crimes charged against Osby occurred on January 14, 1987. They stem from the efforts of the friends and relatives of Earl Ray to find and punish the person who shot and stabbed Ray. Ray was on life-support systems at a Wichita hospital on that date. He died of his injuries the following day.

On the afternoon of January 14, 1987, Terry Brown drove Michael and Monique Johnson to a house at 2849 N. Vassar Street, in Wichita. The Johnsons went to the house to collect a debt owed them by Earl Ray. Brown waited outside of the house for 20 to 30 minutes before the Johnsons returned. They were unable to collect the money they previously had given to Earl Ray. Brown took Michael and Monique back to their house.

Later that day, Brown again took the Johnsons to the house on Vassar, apparently to try again to collect the money. Monique went into the house while Brown and Michael waited in the car. Five to ten minutes later, Osby and Robert Taylor approached the car and asked them to come into the house. When Brown expressed his reluctance, the men told Brown that Monique would be in the house for a while and that they should come [623]*623into the house. When Brown got out of the car, he saw that one of the men had a gun.

The men took Brown and Michael into the back bedroom of the house. There were several people in the bedroom, and each had a gun. Michael and Monique were searched, and Earl Ray’s gun was found on Michael. Osby swung a gun at Michael and hit him in the head. The gun went off, and Michael fell into the corner. Michael had a gash in his forehead and was bleeding.

At that point, the people in the bedroom tied up Brown and the Johnsons. Osby hit Monique on the back of her head with a gun. Some of those in the room discussed taking Brown and the Johnsons out into the country and killing them.

Four or five of the people in the room took Brown and the Johnsons to the front of the house and then out to Brown’s car. Once they were in the car they managed to escape and then drove to the police station and reported the incident.

Osby was charged with aggravated kidnapping of Monique Johnson, kidnapping of Terry Brown, and unlawful possession of a firearm as a result of the incidents at the house that day.

The Voir Dire

Osby apparently was not allowed to ask the members of the jury panel during voir dire whether they had any special knowledge regarding the effect of drug usage.

Osby asserts, without explanation, that the trial court impaired his ability to utilize his peremptory challenges in a meaningful manner by stopping his juror inquiry. Osby intended to inquire whether the panel had any special knowledge with respect to drug use.

We do not have a record of the voir dire proceedings. The only indication of what happened during voir dire is the statement of Osby’s attorney which was made after the jury was selected:

“The only thing I wanted to do is proffer to the Court on voir dire when I was attempting to question the panel as to any special knowledge they might have regarding the effect of drug usage, that one of the witnesses in this case will testify on the day of the alleged kidnapping Monique Johnson consumed cocaine, became very agitated, paranoid, fearful, because of the drug consumption.”

The extent of examination of jurors during voir dire is within the discretion of the trial court. We will not interfere unless an [624]*624abuse of discretion is clearly shown. State v. Guffey, 205 Kan. 9, 13, 468 P.2d 254 (1970). There is no record of the voir dire proceedings; consequently, we cannot consider Osby’s contention that the trial court abused its discretion in limiting his voir dire examination. See State v. Wright, 219 Kan. 808, 812, 549 P.2d 958 (1976).

The Anticipatory Rulings

Osby also claims that the trial court embarked on a series of comments and anticipatory rulings regarding the admissibility of drug-use evidence. In support of his assertion, Osby apparently refers to the following statement by the trial court:

“We are bound by the rule of the Supreme Court of Kansas that ingestion of drugs has nothing to do with credibility, period. That’s the Kansas rule. If it comes in as part of the transaction that was occurring at the time of these events, so be it. That has nothing to do with the rule announced, but right now the ruling is in conformity with the law of Kansas that you can’t affect credibility by asking people about drug usage.”

We have held that credibility of a witness cannot be impeached by admitting evidence of the use of drugs unless it is shown “the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.” State v. Belote, 213 Kan. 291, Syl. ¶ 4, 516 P.2d 159 (1973). Since the trial court’s statement was generally consistent with Kansas law regarding the admissibility of evidence of drug use, Osby was not prejudiced.

Instructions

Osby asserts that the jury instruction given by the trial court regarding whether a person’s credibility could be impeached by the fact the person was under the influence of drugs was confusing and contradictory. The instruction read:

“Evidence that a witness is a user of drugs is not admissible for the purpose of affecting the witness’ credibility.
“Evidence that a witness was under the influence of drugs at the time of the occurrence about which the witness testified may be considered by you along with all the other evidence in the case and be given such weight as you determine.”

Osby did not object to this instruction. The instruction is not confusing or contradictory.

[625]*625Prior to the time the trial court proposed giving the instruction, Osby requested the following instruction:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hunter v. State
Court of Appeals of Kansas, 2025
State v. Morris
Court of Appeals of Kansas, 2024
State v. Guebara
544 P.3d 794 (Supreme Court of Kansas, 2024)
Wasylk v. State
Court of Appeals of Kansas, 2020
State v. Salavea.
Hawaii Supreme Court, 2020
State v. Stafford
290 P.3d 562 (Supreme Court of Kansas, 2012)
State v. Waldrup
263 P.3d 867 (Court of Appeals of Kansas, 2011)
State v. Corbett
130 P.3d 1179 (Supreme Court of Kansas, 2006)
State v. Sabog
117 P.3d 834 (Hawaii Intermediate Court of Appeals, 2005)
State v. Carter
91 P.3d 1162 (Supreme Court of Kansas, 2004)
State v. Amos
658 N.W.2d 201 (Supreme Court of Minnesota, 2003)
State v. Branning
26 P.3d 673 (Supreme Court of Kansas, 2001)
State v. Manning
19 P.3d 84 (Supreme Court of Kansas, 2001)
Frans v. Gausman
6 P.3d 432 (Court of Appeals of Kansas, 2000)
Corbett v. State
746 A.2d 954 (Court of Special Appeals of Maryland, 2000)
State v. Baacke
932 P.2d 396 (Supreme Court of Kansas, 1997)
State v. Matson
921 P.2d 790 (Supreme Court of Kansas, 1996)
State v. Neighbors
908 P.2d 649 (Court of Appeals of Kansas, 1995)
State v. Peckham
875 P.2d 257 (Supreme Court of Kansas, 1994)
Nance v. State
629 A.2d 633 (Court of Appeals of Maryland, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
793 P.2d 243, 246 Kan. 621, 1990 Kan. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-osby-kan-1990.