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STATE v. OSBY

May 25, 1990.

STATE OF KANSAS, Appellee,
v.
MICHAEL F. OSBY, Appellant.



The opinion of the court was delivered by

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

[246 Kan. 623]

      into 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

[246 Kan. 624]

      abuse 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 ...

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