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