State v. Kyando

501 P.3d 911 (Table)

STATE of Kansas, Appellee,

v.Tito N. KYANDO, Appellant.

No. 123,009

Court of Appeals of Kansas.

Opinion filed January 14, 2022.

Debra J. Wilson, of Capital Appeals and Conflicts Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Warner, P.J., Malone and Buser, JJ.

MEMORANDUM OPINION

Buser, J.:

Tito N. Kyando was convicted by a jury of two counts of involuntary manslaughter. He raises four issues on appeal. First, he contends the district court erred when it did not allow him to cross-examine a witness for bias. Second, he claims error because his requested jury instruction on proximate cause was not provided to the jury. Third, Kyando asserts that cumulative error deprived him of a fair trial. Finally, he argues that there was insufficient evidence to support the jury's verdicts. Upon our review, we find no reversible error. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of September 4, 2018, police officers and firefighters from the Wichita Police Department and Wichita Fire Department responded to the scene of a vehicular collision at an intersection in Wichita. The collision occurred when a Chevrolet Trailblazer driven by Kyando struck the passenger's side of a Ford Fiesta driven by Uriel Salabao with Miyah Latney in the passenger's seat.

Prior to the collision, at about 2:05 p.m., Kyando, who worked as a semi-trailer-truck driver, went to his vehicle and discovered that the cooling unit in the trailer had stopped operating. This concerned Kyando because the trailer unit was full of refrigerated goods, which could spoil without proper cooling. Since he needed fuel to restart the cooling unit, Kyando borrowed his girlfriend's Trailblazer and drove towards a gas station.

Just before 2:30 p.m., Kyando drove eastbound on 31st Street approaching the Turnpike Drive intersection. Of note, a short distance to the west of the intersection is a bridge overpass which creates a hill that obstructs the view for eastbound motorists travelling towards the intersection. As Kyando drove on 31st Street, he saw three vehicles in the westbound lane turning left at the intersection with Turnpike Drive. The road conditions were normal and dry. For vehicles that traveled westbound, the stoplight at the intersection was equipped with a green arrow, which gave the vehicles in the turn lane the right of way, and a green light, which indicated that cars in the turn lane should yield to oncoming traffic.

Kyando told Officer Rebekah Jabara he had the green light as he approached the intersection, but the three oncoming vehicles turned in front of him, making their turns one after another. As recorded on the officer's body camera, Kyando told Officer Jabara that as he approached the intersection he saw the first vehicle make the left-hand turn. Upon seeing the second vehicle make the left-hand turn he said, "[O]h shit!" or words to that effect. When the third vehicle, driven by Salabao, entered the intersection he was concerned that a collision was inevitable. According to Kyando, as he drove closer to the intersection, he tried to brake, but his foot slipped from the brake pedal and pressed on the gas pedal. He then collided with the last of the three oncoming vehicles driven by Salabao, striking it on the passenger's side. Both Salabao and Latney suffered blunt force injuries in the collision which resulted in their deaths.

Lieutenant Marc Haneberg of the fire department contacted Kyando at the scene. Lieutenant Haneberg saw Kyando bleeding from his head and thought he appeared a bit disoriented but cogent. Kyando was transported by ambulance to the hospital.

Sergeant James Bray conducted the police department's investigation of the collision. Since 2008 the officer was a member of the police department's critical accident team with the responsibility for gathering evidence at the scene and conducting accident reconstructions. From 2015 to 2018, Sergeant Bray was assigned as a detective to the accident follow-up unit which investigated major vehicular accidents involving serious injuries or deaths.

Sergeant Bray interviewed Kyando at the hospital after he was released. Kyando informed the officer that he was a commercial truck driver who was familiar with the rules of the road. Kyando told Sergeant Bray "he was going 35 to 40 miles an hour, very insistent on that, that he was only going 35 to 40 miles an hour, the same speed as regular traffic." Kyando admitted to being in a hurry so he could return the Trailblazer to his girlfriend. According to Kyando, he was in a hurry because he needed to obtain the gas can and return the Trailblazer by 2:30 p.m. so his girlfriend could go to work. Of note, the police dispatcher received a call regarding the collision at 2:25 p.m.

Sergeant Bray, an accredited accident reconstruction expert, told Kyando that, in his opinion, the damage to the vehicles indicated that the Trailblazer was traveling more than 40 miles per hour—the speed limit on 31st Street—at impact. Even so, Kyando insisted that he drove the speed limit. At trial, Sergeant Bray testified that "based on the damage to the Ford Fiesta and [Kyando's] car and how far the cars traveled after impact .... When we walked up there we knew it was not a 40-mile-an-hour crash."

Both vehicles involved in the collision were manufactured with event data recorders. These devices record technical data regarding the vehicle's operation shortly before, during, and after a collision. Informally, such devices are analogous to "black box" devices installed in airplanes. Sergeant Bray, who had training in the devices, downloaded the event data recorder information from both vehicles and conducted a reenactment to replicate what the drivers would have been able to observe shortly before the collision.

The event data recorders revealed the speed at which both drivers operated their vehicles approximately five seconds before the crash:

Seconds Before Accident	Kyando's Speed	Salabao's Speed
5	87 miles per hour	7 miles per hour
4	88 miles per hour	6 miles per hour
3	88 miles per hour	7 miles per hour
2	88 miles per hour	10 miles per hour
1	80 miles per hour	13 miles per hour
Time of Impact	68 miles per hour	16 miles per hour

About 5 seconds prior to impact the event data recorder indicated the Trailblazer was operating at 94 percent throttle which was consistent with a fairly strong push on the accelerator. At 4 seconds before impact the Trailblazer was traveling at 88 miles per hour with a 63 percent throttle, consistent with Kyando lessening the pressure on the accelerator. Approximately 3 seconds prior to impact, the Trailblazer continued traveling at 88 miles per hour but with zero percent throttle indicating that Kyando's foot was off the accelerator. About 2 seconds prior to impact, the Trailblazer continued traveling at 88 miles per hour with 28 percent throttle indicating force was, once again, being applied to the accelerator. About 1 second prior to impact, the event recorder indicated that while the Trailblazer was slowing down from 80 to 68 miles per hour, Kyando's foot was off the accelerator and the brakes were applied.

Numerous photographs and videos were admitted in evidence at trial. These photographs depicted the area surrounding the site of the collision and the probable views that Kyando and Salabao had upon their approach to the intersection. In a recreation of the collision, Sergeant Bray correlated the photographs with the event data recorder readings to show the respective views of both drivers in the 5 seconds prior to the collision. In particular, the recreation showed that when Salabao's Fiesta was about 75 feet from the point of impact, the Trailblazer was about 499 feet from the point of impact.

At trial, a recording from two external video cameras located at a nearby business, AAA Towing, was shown to the jury which memorialized in real time the speed of the approach of Kyando's vehicle as it traveled on 31st Street towards the intersection. According to Sergeant Bray, the video was consistent with the speed readings from the event data recorder.

Kyando was charged with two counts of involuntary manslaughter in violation of K.S.A. 2018 Supp. 21-5405(a)(1). The State also charged Kyando in the alternative with two counts of vehicular homicide in violation of K.S.A. 2018 Supp. 21-5406. At the conclusion of trial, the jury found Kyando guilty of both counts of involuntary manslaughter. The district court later sentenced Kyando to 36 months of probation, with underlying concurrent sentences of 32 months’ imprisonment.

Kyando timely appeals.

CROSS-EXAMINATION

Sergeant Bray testified on behalf of the State regarding responding to the scene of the accident, the data retrieved from the event data recorders, and the opinions he formed based on that data. During cross-examination, Sergeant Bray testified that law firms occasionally hired him to do accident reconstruction work in civil lawsuits. After confirming that Sergeant Bray had been hired by one firm, DeVaughn James, seven or eight times, Kyando followed with, "I'm presenting to you what's been provided in evidence as documentation showing that the Law Offices of DeVaughn James represent the estate of Ms. Salabao." At that point, the State objected to the relevance of the question.

In a colloquy at the bench, defense counsel argued that he should be able to cross-examine Sergeant Bray regarding his work for that law firm because K.S.A. 60-420 allows him to cross-examine a witness about any matter relevant to credibility. The district court then asked if defense counsel was suggesting that Sergeant Bray's testimony lacked credibility because he worked for the Salabao family. Defense counsel responded, "No." The State then informed the district court that Sergeant Bray did not work for the Salabao family, and the law firm had not retained him in the civil case. Defe...