Opinion
No. 107,275.
2013-02-1
CITY OF ULYSSES, Appellee, v. Eliazar DEGOLLADO, Appellant.
Appeal from Grant District Court; Clint B. Peterson, Judge. Derek Miller, of Miller Law Firm, LLC, of Liberal, for appellant. David C. Black, of Black & Akers, P.A., of Johnson, for appellee.
Appeal from Grant District Court; Clint B. Peterson, Judge.
Derek Miller, of Miller Law Firm, LLC, of Liberal, for appellant. David C. Black, of Black & Akers, P.A., of Johnson, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Eliazar Degollado contends the district court should not have found him guilty of driving while under the influence of alcohol and other traffic infractions when he appealed his convictions from the municipal court of Ulysses. He argues the district court should have considered what he calls an oral motion to suppress the evidence due to an illegal traffic stop. We find no such motion in the record on appeal. Accordingly, we affirm the convictions. City officers follow Degollado.
Early one morning, around 3 a.m., two officers from the City of Ulysses police department, Joseph Hilger and Craig Hampton, watched a Chevrolet Suburban driven by Degollado stop at the intersection of West Patterson Avenue and Colorado Street and then turn right onto Colorado Street. The officers observed Degollado drive over the double yellow line into the northbound lane of traffic with his driver's side front tire. They followed Degollado south on Colorado Street.
While following a couple of car lengths behind Degollado, the officers saw Degollado's vehicle weaving inside its own lane of traffic. Degollado then turned east on San Jacinto Avenue. Hilger testified that Degollado drove into the oncoming westbound lane of San Jacinto Avenue three times over the next three blocks.
Hilger testified that Degollado drove left of center the first time with his driver's side tires, a second time with all four of his vehicle's tires, and during the third occurrence Degollado almost drove into a parked vehicle on the opposite side of the street facing west. Degollado then stopped at the intersection of Main Street and San Jacinto Avenue before continuing to travel east on San Jacinto Avenue. As Hilger entered the same intersection, he activated his emergency lights to initiate a traffic stop. Degollado continued to drive east on San Jacinto Avenue and made a right turn onto Glenn Street. Hilger then activated his emergency siren. Degollado continued driving south on Glenn Street and made a left turn to travel east on East Flower Avenue. Degollado finally came to a stop in front of his residence at 202 East Flower Avenue.
When he approached Degollado, Hilger asked for his driving license. Degollado pointed to 202 East Flower Avenue and told Hilger that his driving license was inside his residence. When Hilger asked Degollado if he had been drinking, Degollado responded, “Yes.” Hilger observed that Degollado had glazed eyes, the odor of alcohol on his breath, and his speech was slurred. Hilger asked Degollado to exit the vehicle and perform the standard field sobriety tests. Degollado agreed to do the tests and had to use his door to assist him out of his vehicle.
Hilger had Degollado perform the horizontal gaze nystagmus test, walk-and-turn test, and one-leg stand test. Degollado scored six out of the six possible clues of intoxication in the horizontal gaze nystagmus test. During the walk-and-turn test, Degollado scored seven out of the eight possible clues. When performing the one-leg stand test, Degollado scored three out of four possible clues and did not complete the test. Hilger placed Degollado into custody and transported him to the Grant County Law Enforcement Center. Degollado subsequently refused to provide a breath sample for an evidentiary breath test. Hilger arrested Degollado.
The City charged Degollado with driving while under the influence of alcohol or drugs in violation of ordinance number 1121–30, driving without a driving license in his immediate possession in violation of ordinance number 1171–143, and driving left of center in violation of ordinance number 1171–43.
Degollado appeared in the Ulysses Municipal Court and entered a plea of guilty to driving while under the influence, 2nd offense. In exchange for Degollado's plea, the City agreed to dismiss all other charges. The municipal court sentenced Degollado to 1 year in jail, suspended all jail time except 5 days, and placed Degollado on 1–year supervised probation. The municipal court also ordered Degollado to complete a drug and alcohol evaluation and imposed a $1,000 fine and court costs. Degollado appealed the municipal court judgment to the District Court of Grant County.
In turn, the district court held a trial de novo to consider Degollado's municipal appeal. The district court heard testimony from Hilger, Hampton, and Degollado. During closing argument, Degollado's counsel made the statement, “I don't think that Mr. Degollado committed any traffic violations. [Degollado] testified that the only time he crossed the center line was to avoid the trash container. There is no center line on San Jacinto.” The district court took the matter under advisement.
The district court subsequently found Degollado guilty of driving while under the influence, 2nd offense under K.S.A.2009 Supp. 8–1567(e) based on the officer's testimony regarding Degollado's “intoxicated appearance and behavior, as well as the fact that [Degollado] did not submit to a breath test when requested.” The district court also found Degollado guilty of driving without a driving license in his immediate possession under K.S.A. 8–244, and not guilty of driving left of center. The journal entry also noted that during closing argument Degollado “appears to ask the Court to find the initial stop of [Degollado] to be illegal and to therefore acquit [Degollado] on all charges.” The district court clarified: “Such a request is merely a motion to suppress evidence. As [Degollado] did not comply with K.S.A. 22–3215, the court will not consider the propriety of the initial stop of [Degollado].”
In this appeal, Degollado challenges the district court's decision not to consider what he maintains was an oral motion based on newly discovered evidence made during trial to suppress an illegal stop. We find no motion in the record.
We have carefully reviewed the record of the trial. The only argument we can find in the record is a statement made by defense counsel during closing argument. Degollado's counsel made the statement, “I don't think that Mr. Degollado committed any traffic violations. [Degollado] testified that the only time he crossed the center line was to avoid the trash container. There is no center line on San Jacinto.” We note that Degollado never made any argument to the district court during trial that he was seeking to suppress the traffic stop because he only just became aware of the grounds, or newly discovered evidence, during Hilger's testimony. The quoted statement is a statement of position and not a request for court action.
In fact, it is only the interpretation of the district court that construed counsel's statement as some sort of motion that Degollado uses as the basis of this appeal. Though not stated on appeal, Degollado is presumably seeking the application of the Fourth Amendment exclusionary rule to bar all evidence of his intoxication obtained as a result of the alleged unlawful search and seizure so the City would not have any evidence to support his convictions. K.S.A. 22–3215 only allows a defendant to move to suppress any evidence of a “confession or admission” given by him or her on the ground that it is not admissible as evidence. See State v. Weis, 246 Kan. 694, 696, 792 P.2d 989 (1990). K.S.A. 22–3216, however, governs motions to suppress illegally seized evidence. Degollado believes the district court meant to cite to K.S.A. 22–3216, but argues that the district court should have allowed him to argue his motion under either statute.
Since the district court treated this statement as some sort of motion, we will briefly examine the merits of the arguments. Ordinarily, a defendant seeking to have evidence suppressed under K .S.A. 22–3216 must file a written motion before his or her trial begins. K.S.A. 22–3216(3), however, provides:
“The motion [to suppress evidence] shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.” (Emphasis added.)
Degollado asserts that the district court failed to consider it had discretion under K.S.A. 22–3216 to evaluate his motion based on the “newly discovered evidence” that became known during Hilger's testimony. The City, however, argues that Degollado should have made any motion to suppress prior to trial because “no new evidence was presented during trial.”
Degollado argues that Hilger testified to several facts not in his police report that show Hilger did not have a basis to conduct a traffic stop for driving left of center. Hilger testified that (1) there were no painted lines dividing San Jacinto Avenue in the locations where Hilger observed Degollado drive left of center three times; (2) it could be a “tight fit” driving down San Jacinto Avenue because of the cars that typically park on both sides of the street; and (3) Degollado almost drove into a parked vehicle because Degollado's vehicle travelled too far over into the oncoming lane of traffic when he had to drive into the oncoming lane to avoid a trash container in his lane of traffic.
Degollado asserts that this “newly discovered evidence” provided cause to make an oral motion to suppress during trial. Degollado's own testimony, however, does not support his assertion.
During trial, the following exchange occurred between Degollado and his defense counsel:
“Q. [DEFENSE COUNSEL]: And San Jacinto Avenue doesn't have a center line, correct?
“A. [THE DEFENDANT]: No, it doesn't.
“Q. Are their [ sic ] cars parked on both side[s]?
“A. All the time.
“Q. So is it a pretty narrow roadway?
“A. Yes it is. I mean it's
“Q. And then at some point
“A. You got to move to not hit the cars, you got to swerve.
“Q. You have to swerve in and out not to hit the cars?
“A. Yes, Yes.
“Q. And then at some point, there was a trash container in your way?
“A. Yeah, the 300 block where he's saying, there was trash container, big—a big trash container.
“Q. How big was it?
“A. Big and tall as the building, and from here to that wall.
“Q. Okay.
“A. About 12 feet wide.
“Q. So you had to go completely in the other lane to get by it?
“A. Yeah.”
Degollado cannot complain that he was unable to raise a written pretrial motion to suppress evidence under K.S.A. 22–3216 because he only became aware of “newly discovered evidence” during Hilger's testimony when Degollado's own testimony indicates that he had knowledge of the very evidence he now claims on appeal that he was not aware existed prior to trial. This is akin to invited error and a defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). Regardless, the district court was not required to exercise its discretion under K.S.A. 22–3216.
In State v. Wickliffe, 16 Kan.App.2d 424, 826 P.2d 522 (1992), the trial court denied the defendant's motion to suppress made during trial because the defendant failed to make the motion in writing before trial commenced. This court held that it is error for the trial court to summarily dismiss a motion to suppress made after the commencement of the trial without exercising its discretion to evaluate whether the defendant's failure to raise the motion prior to trial came within one of the two exceptions listed in the statute. 16 Kan.App.2d at 428. In State v. Bennett, 20 Kan.App.2d 767, 892 P.2d 522 (1995), this court clarified that Wickliffe stands for the following proposition: “A trial court's discretion to hear a motion to suppress is invoked only after the defendant claims that the failure to file a written pretrial motion to suppress was due to the defendant's unawareness of the ground for the motion prior to trial.” 20 Kan.App.2d 770, Syl. ¶ 2. The Bennett panel held that the trial court properly declined to hear the defendant's postconviction motion to suppress because the defendant failed to file a written pretrial motion to suppress and never argued before the trial court that he was not aware of the grounds for the motion to suppress prior to trial or that his failure to file the motion was otherwise excusable. 20 Kan.App.2d at 770.
Like the defendant in Bennett, Degollado did not file a written pretrial motion to suppress. More importantly, Degollado never made any argument to the district court during trial that he was seeking to suppress the traffic stop because he only just became aware of the grounds, or newly discovered evidence, during Hilger's testimony. A party asking a court to exercise its discretion under K.S.A. 22–3216 must give the court an opportunity to consider why the party failed to make the motion in writing before trial and decide if the reasons came within one of the two exceptions listed in the statute. Simply put, Degollado never argued to the district court that he had just become aware of any “newly discovered evidence” so the district court could consider if Degollado had justification for failing to file a pretrial motion. In our view, this lack of argument is because Degollado never made a motion for such relief to the district court.
We affirm the convictions.