State v. Brosseit

423 P.3d 1036

STATE of Kansas, Appellee,

v.Victor Fritz BROSSEIT, Appellant.

No. 114,753

Supreme Court of Kansas.

Opinion filed August 17, 2018.

Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Stephen A. Hunting, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellee.

The opinion of the court was delivered by Per Curiam:

Victor Brosseit seeks review of the Court of Appeals decision affirming his conviction for driving under the influence (DUI). Brosseit argues that the district court and the panel erred when they concluded that K.S.A. 22-3201(g) permitted the State to endorse a witness on the day of trial. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 23, 2014, Officer Brandon Early pulled Brosseit over after Brosseit failed to maintain a single lane while driving his truck. Early claimed that he smelled a strong odor of alcohol when he made contact with Brosseit and noticed that Brosseit's eyes were bloodshot and watery and his speech was slurred. After a dispatch operator informed Early that Brosseit's license was revoked, Early asked Brosseit to exit the vehicle and perform field sobriety tests. Early testified that Brosseit stumbled when he got out of his truck. Brosseit told Early he could not perform the tests because he was disabled. Brosseit attempted to recite the alphabet at Early's request but failed to recite it accurately. He also declined to submit to a preliminary breath test. Brosseit was placed under arrest, and a second officer searched Brosseit's vehicle. The officer found an open can of beer, a plastic mug with liquid, and a bottle of whiskey that had previously been opened.

Early read Brosseit an implied consent advisory and again asked if he would take a breath test. When Brosseit refused, Early obtained a warrant to obtain a blood sample. Scott Harris, an emergency medical services (EMS) paramedic, drew Brosseit's blood. Early submitted the sample to the Kansas Bureau of Investigation (KBI) laboratory for testing. The results indicated that Brosseit's blood alcohol level was 0.103, plus or minus .007.

The State initially charged Brosseit with one count of felony DUI in violation of K.S.A. 2013 Supp. 8-1567(a)(3) ("operating or attempting to operate any vehicle within this state while ... under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle"); one count of driving while his license was revoked as a habitual violator or driving while suspended in the alternative; and one count of transporting an open container. In an amended complaint, the State added alternative counts of DUI in violation of K.S.A. 2013 Supp. 8-1567(a)(1) ("operating or attempting to operate any vehicle within this state while ... [t]he alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph [1] of subsection [f] of K.S.A. 8-1013, and amendments thereto, is .08 or more") and K.S.A. 2013 Supp. 8-1567(a)(2) ("operating or attempting to operate any vehicle within this state while ... the alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is .08 or more"). The State amended the complaint a second time to include one count of refusal of preliminary breath test. None of the complaints identified Harris, the EMS paramedic, as a potential witness.

At trial, the State sought to endorse Harris immediately before calling him as a witness. The district court allowed the endorsement over Brosseit's objection. Harris testified about his training as an EMS paramedic and about the procedure that he performs when drawing blood. He testified that he drew Brosseit's blood at the scene of Brosseit's arrest. Harris described the custody receipt that he completed when drawing Brosseit's blood and testified that after drawing the blood, he agitated the tube in which he had collected the sample, placed it in a holder, initialed it, dated it, initialed an evidence seal on the tube, and then turned it over to Early. Brosseit watched Early place the tube into an evidence kit.

The trial court instructed the jury to consider whether Brosseit was guilty of DUI under two different theories: "operating a vehicle while having a blood alcohol concentration of .08 or more" as measured within three hours of the time of operating or attempting to operate the vehicle and "operating a vehicle while under the influence of alcohol." The jury found Brosseit guilty under both theories. It also found him guilty of driving while his license was revoked as a habitual violator, of transporting an alcoholic beverage in an opened container, and of refusal to take a preliminary breath test. The district court sentenced Brosseit to 12 months in jail for driving under the influence, 12 months in jail for driving while his license was revoked as a habitual violator, and 30 days in jail for transporting an open container, all to run consecutive. The court also fined Brosseit $10 for refusing the preliminary breath test.

Brosseit appealed and the panel affirmed his convictions. State v. Brosseit , No. 114,753, 2017 WL 657867 (Kan. App. 2017) (unpublished opinion). Brosseit petitioned for this court's review of three issues. This court granted Brosseit's petition with respect to one issue only: whether the panel erred when it affirmed the district court's decision to allow the late endorsement of Harris.

ANALYSIS

Brosseit argues that the district court erred when it allowed the State to endorse Harris on the day of trial because K.S.A. 22-3201(g) prohibits such a late endorsement.

Preservation

Before moving to the merits of Brosseit's argument, we briefly address the State's contention that Brosseit did not preserve his claim in the district court. Brosseit persuasively responds that this court cannot address the State's preservation argument because the State did not cross-petition for this court's review of any preservation issues.

Supreme Court Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54) provides that this court "will not consider issues not presented or fairly included" in a petition for review. Supreme Court Rule 8.03(b)(2) permits a respondent to cross-petition for this court's review of issues not included in the petition for review. The respondent may also respond to the petition for review, wherein the respondent can provide "alternative grounds for affirming the decision of the Court of Appeals, provided those grounds were raised and briefed in the Court of Appeals." Supreme Court Rule 8.03(c)(3) (2018 Kan. S. Ct. R. 55).

In State v. Gray , 306 Kan. 1287, 1292, 403 P.3d 1220 (2017), we declined to consider the State's preservation argument when the State had not cross-petitioned for review of the Court of Appeals' conclusion that Gray had properly preserved his claim.

Here, the State argued to the Court of Appeals that Brosseit had not preserved his argument because, while he objected to Harris' late endorsement, he did not argue that the endorsement violated the plain language and legislative intent of K.S.A. 22-3201(g) —his argument on appeal. The Court of Appeals did not address the State's preservation argument; it moved directly to the merits. It is unclear whether the panel concluded the issue was properly preserved without saying so in its decision or if it neglected to consider the argument.

As in Gray , the State did not cross-petition for review of the Court of Appeals conclusion or lack thereof regarding preservation. Nor did the State submit a response to the petition for review. Accordingly, the preservation issue is not before this court, and we will reach the merits of Brosseit's claim.

Late Endorsement

Brosseit argues that the plain language of K.S.A. 22-3201(g) requires the State to endorse all known witnesses when it files the complaint and only permits endorsement after that time if the State was unaware of the witness when it filed the complaint. Brosseit asserts that the State knew of Harris at the time it filed the complaint and was consequently barred from endorsing him later.

Relying on our precedent, the Court of Appeals affirmed the district court's decision to allow the State to endorse Harris because it concluded that K.S.A. 22-3201(g) permits the prosecutor to endorse any witness at any time as long as it does not cause prejudice to the defendant. Brosseit acknowledges that the lower courts followed this court's caselaw in their decisions; he argues that we have incorrectly interpreted K.S.A. 22-3201(g) in those cases.

Standard of Review

Appellate courts generally review the district court's decision to permit the late endorsement of a State's witness for an abuse of discretion. State v. Snow , 282 Kan. 323, 335, 144 P.3d 729 (2006), disapproved on other grounds by State v. Guder , 293 Kan. 763, 267 P.3d 751 (2012). To the extent resolution of the issue requires interpretation of a statute, this court's review is de novo. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Discussion

When interpreting a statute, this court "ascertain[s] legislative intent by looking to the[ ] statute[']s[ ] plain language, giving common words their ordinary meaning. If the plain language is unambiguous," this court does " ‘not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.’ " State v. Ryce , 303 Kan. 899, 906, 368 P.3d 342 (2016) (quoting University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't , 301 Kan. 993, 998-99, 348 P.3d 602 [2015] ), affirmed 306 Kan. 682, 396 P.3d 711 (2017). However, "[w]hen faced with an ambiguity, courts must attempt to ascertain legislative intent and in doing so may look to canons of construction, legislative history, the circumstances attending the statute's passage, the...