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State v. Claerhout

Supreme Court of Kansas

December 6, 2019

State of Kansas, Appellee,
v.
Jeremy Claerhout, Appellant.

         SYLLABUS

         1. Evidence of a prior diversion agreement for driving while intoxicated may be relevant to establishing that a defendant was on notice that driving while intoxicated is dangerous.

         2. The admissibility of evidence under K.S.A. 60-455 is subject to harmless error analysis on appeal.

         3. It is not necessary that an expert witness demonstrate expertise in every theory, principle, or scientific discipline underlying the knowledge, skill, experience, training, or education that may qualify an expert witness to give testimony.

         4. Voluntary intoxication is not a defense to reckless second-degree murder.

          Appeal from Johnson District Court; Sara Welch, judge.

         Review of the judgment of the Court of Appeals in 54 Kan.App.2d 742, 406 P.3d 380 (2017).

          Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

          Kendall S. Kaut, assistant district attorney, argued the cause, and Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          ROSEN, J.

         Driving while intoxicated, Jeremy M. Claerhout caused the death of another driver in a rear-end collision. He was convicted of reckless driving and second-degree murder for unintentional but reckless homicide. A divided panel of the Court of Appeals affirmed the conviction, and this court granted review on all issues for which review was sought.

         The facts underlying the legal issues in this case are essentially undisputed.

         Facts

         On the afternoon and evening of January 11, 2015, Claerhout and two friends visited several bars in Olathe, Kansas. All three men consumed beers and cocktails at each of the bars, and, based on his own recollections and the testimony of bartenders, it is estimated that Claerhout consumed approximately five 12-ounce beers, four 24-ounce beers, one 32-ounce beer, and one or two vodka cocktails that afternoon and evening.

         After about an hour at the third bar, the three men got into Claerhout's black Ford F-150 pickup truck and headed back toward a bar they had visited earlier. Claerhout was driving.

         A short time later, a witness standing outside her place of employment saw a white car drive by; a few seconds later she saw a black Ford truck go by at a high rate of speed, its engine revving and the tires spraying water in the rain. Ten to 15 seconds afterwards, she heard a loud impact sound, which prompted her to call 911. Another witness, who was stopped at an intersection, saw a white Mazda propelled past the intersection at approximately 90 miles per hour out onto the right side of the grassy shoulder, hit and break a cable pole, proceed at least another 100 yards, and come to a stop upon colliding with an iron fence on the other side of the street. She saw a black pickup truck approaching from behind and at the same speed as the Mazda; it then slowed to a stop. She also called 911.

         Police and paramedics found the Mazda smashed into a wrought iron fence. The driver was wearing his seatbelt, and the airbags had deployed. The driver's seat was broken off its track and had slid backwards, and the driver was unconscious, on the dashboard and facing the roof.

         The front of the truck was damaged, and a piece from the rear end of the Mazda was stuck in the front end of the truck. The three occupants of the truck all told police that they did not know what had happened. Claerhout had bloodshot, watery eyes and the odor of alcohol on his breath, and he was slurring his words. He was smoking a freshly lit cigarette, which officers asked him to extinguish. He put out the cigarette but then lit another one and continued to smoke it after being asked to put it out. He said he had no tests on him, which he failed. He was arrested and taken to a police station, where an Intoxilyzer 8000 breath test was administered at 11:30 that night. The breath sample indicated a blood alcohol content of .211, more than twice the legal limit of .08.

         The accident took place in a mixed residential and office area where the speed limit was 40 miles per hour. Based on tracks on the grass and the roadway as well as damage to objects along the way, Officer John Moncayo reconstructed what happened before and after the collision. There was no braking by either vehicle before the collision. The truck struck the Mazda at a slight angle on the rear passenger side, propelling the Mazda onto the grass, where it struck and sheared off a medium-sized tree at its base. The car continued forward and struck a utility pole, breaking it in half and leaving the top half of the pole suspended by the cable line. The car then swerved back onto the road, crossed the center line, struck the curb, went over a small hill, and stopped when it struck a wrought iron fence. In all, the Mazda traveled some 848 feet after the impact.

         The driver, Christopher Willdermood, was taken to a nearby hospital, where imaging showed significant bleeding in the back of his brain. He was declared brain-dead on February 14, 2015. Blood analyses showed no signs of narcotics or alcohol in his body. The cause of death was listed as complications from a blunt injury to the head.

         The State charged Claerhout with second-degree murder for unintentional but reckless homicide or, in the alternative, involuntary manslaughter while driving under the influence of alcohol, and an additional count of reckless driving. The defense theory at trial was that Claerhout was highly intoxicated and incapable of safely driving at the time of the accident, and he therefore was guilty of involuntary manslaughter but not guilty of second-degree murder.

         The jury entered a verdict of guilty on the count of second-degree murder, guilty on the count of involuntary manslaughter while driving under the influence of alcohol, and guilty of the count of reckless driving. Because the jury found Claerhout guilty of both alternative homicide charges, the trial court vacated the conviction on the count of involuntary manslaughter while driving under the influence. The court sentenced him to a standard term of 117 months for second-degree murder and a concurrent 30-day sentence for reckless driving.

         A panel of the Court of Appeals affirmed the conviction, with one judge dissenting. State v. Claerhout, 54 Kan.App.2d 742, 406 P.3d 380 (2017) This court granted review on all issues raised in the petition for review.

         Analysis

         Evidence of Prior Diversion Agreement

         In 2010, Claerhout entered into a diversion agreement subsequent to an arrest for driving while intoxicated. According to the statements of counsel at a motion to suppress, the arrest was made after a stop for a missing tail light; there was no indication of dangerous driving and no accident was involved. At trial, the State was allowed to introduce the diversion agreement, without explanation, for the purpose under K.S.A. 2016 Supp. 60-455(b) of proving knowledge that driving while intoxicated is dangerous. Claerhout argues that ...


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