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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 97,457 STATE OF KANSAS, Appellee, v. RICHARD SHADDEN, Appellant.

SYLLABUS BY THE COURT 1. Ordinarily an appellate court will not consider an issue on appeal not raised before the district court.

2. The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.

3. A protective order issued on a motion in limine may be granted when a district court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial; and (2) The pretrial ruling is justified as opposed to a ruling during trial because the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; the consideration of the issue during the trial might unduly interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. In determining if a pretrial ruling is justified a district court should weigh 1

whether the court will be in a better position during trial to assess the value and utility of evidence and its potential prejudice.

4. A district court ruling on the first motion in limine factor--i.e., the admissibility of evidence--and an appellate court reviewing that ruling apply a multistep analysis. Under the multistep evidentiary analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. In the third step of the analysis, a district court must apply the applicable rule or principle. The appellate court's standard of review of this third step varies depending on the rule or principle that is being applied. Some rules or principles grant the district court discretion, while others raise matters of law. Finally, an analysis under K.S.A. 60-445 may be required, depending on the issue and parties' arguments. Under that statute, a district court may exclude evidence if its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had a reasonable opportunity to anticipate that such evidence will be offered. This analysis is reviewed under an abuse of discretion standard.

5. The second prong of the motion in limine test--whether a pretrial ruling is justified instead of a ruling during the trial--rests in the discretion of the district court. Hence, the district court's ruling is reviewed for an abuse of discretion.

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6. K.S.A. 60-456 generally governs the admissibility of all opinion testimony, regardless of the subject matter of the testimony or of the categorization of the witness as lay or expert.

7. Under K.S.A. 60-456(a), a layperson is allowed to offer opinions or inferences as the judge finds may be rationally based on the perception of the witness and are helpful to a clearer understanding of the witness' testimony.

8. Under K.S.A. 60-456(b), an expert's opinion is admissible if it is (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.

9. Under K.S.A. 60-456(d), testimony in the form of opinions or inferences is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.

10. On appeal, a district court's application of K.S.A. 60-456 is reviewed under an abuse of discretion standard.

11. If an opinion is based on scientific methods or procedures and is offered for admission, the offering party must satisfy the test enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and adopted in Kansas in State v. Lowry, 163 Kan. 622, 3

629, 185 P.2d 147 (1947). The Frye test requires a showing that the basis of a scientific opinion is generally accepted as reliable within the expert's particular scientific field.

12. The Frye test applies only to testimony based on a scientific method or procedure. It does not apply to pure opinion testimony, which is an expert opinion developed from inductive reasoning based on the expert's own experiences, observations, or research.

13. On appeal, while the admission of expert testimony is generally subject to an abuse of discretion standard, the determination of whether the Frye test was correctly applied is subject to de novo review.

14. Both lay and expert witnesses are permitted to testify as to their observations of an automobile driver's acts, conduct, and appearance and also to give opinions on the driver's state of impairment based on those observations.

15. Opinion testimony based on objective observations regarding an automobile driver's coordination, balance, and mental acuity is not scientific evidence.

16. Opinion testimony asserting a relationship between performance on field sobriety tests and a specific blood alcohol content or concluding performance on a field sobriety test establishes a probability that a driver's blood alcohol content is above legal limits is inadmissible unless an appropriate scientific opinion foundation has been laid.

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17. If a witness does not opine that there is a relationship between performance on field sobriety exercises and specific levels of blood alcohol content, the witness' mere use of terms like "test," "points," "pass," or "fail" when referring to field sobriety exercises does not lend scientific credibility to the results.

18. Under K.S.A. 60-261, the statutory harmless error test, no error in either the admission or the exclusion of evidence is grounds for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to be inconsistent with substantial justice. An appellate court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

19. The statutory harmless error test--i.e., the determination of whether substantial justice has been done and whether an error affirmatively caused prejudice to the substantial rights of a party--requires examination of the trial record as a whole, not just examination of the error in isolation.

20. A contemporaneous and specific objection must be made to all evidentiary claims--including those alleging prosecutorial misconduct--to preserve the issue for appellate review.

21. When an appellate court reviews a claim of prosecutorial misconduct involving the improper elicitation of testimony, the court must first consider whether the questions posed were impermissible. If the questions were impermissible, the reviewing court then

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determines whether the misconduct constituted plain error; that is, whether the evidence prejudiced the jury against the defendant and denied the defendant a fair trial.

22. In making the assessment of whether a prosecutor's misconduct in introducing evidence is plain error, an appellate court must consider: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct exhibited ill will toward the defendant by the prosecutor; and (3) whether the misconduct may be deemed harmless in light of the evidence of guilt presented at trial. None of these three factors is individually controlling. Where the first two factors weigh against the prosecutor, a reviewing court may find the misconduct harmless only when both the statutory and constitutional harmless error tests are satisfied.

23. Even if a constitutional issue arises because of the erroneous admission of evidence, K.S.A. 60-404 requires a party to lodge a timely and specific objection to the alleged error at trial in order to preserve the issue for appeal.

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed July 9, 2010. Judgment of the Court of Appeals on the issues subject to review is reversed. Judgment of the district court on the issues subject to review is affirmed.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by 6

LUCKERT, J.: Richard Shadden appeals his conviction for driving under the influence of alcohol (DUI) to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2009 Supp. 8-1567(a)(3). During the trial, a law enforcement officer testified Shadden failed the National Highway Traffic Safety Administration's (NHTSA) standardized walk-and-turn test and his failure meant there was a 68 percent chance that his blood alcohol content (BAC) was more than .10. On appeal, Shadden argues this testimony presents scientific opinion evidence that is not admissible without the State laying the foundation required in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which was adopted in Kansas in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). Shadden further argues that words like "'tests' or other related terms such as pass, fail, or points" should not be allowed in an officer's testimony or the State's arguments because the words add scientific credibility to the officer's opinion.

We agree that the Frye test must be met before admitting evidence establishing a relationship between a NHTSA test failure and a specific measurement of a driver's BAC. In this case, the State did not lay the necessary foundation, and the district court erred in admitting the officer's opinion that 68 percent of the time a person exhibiting two clues has a BAC of more than .10. Nevertheless, we disagree that it was error to allow the State and its witnesses to use words like "tests," "pass," "fail," or "points" when referring to Shadden's performance on the NHTSA test. These words are commonly used by lay and expert witnesses to describe evidence that is not scientific in nature. Therefore, it is not necessary to meet the Frye test before these words are used. We also reject other issues raised by Shadden and find the Frye error harmless. Therefore, we affirm Shadden's conviction.

FACTS AND PROCEDURAL BACKGROUND On December 27, 2005, Officers Nick Weiler and Shannon Goodnight observed the driver of a pickup truck run a stop sign and fail to yield the right of way to an 7

oncoming car, causing the driver of the car to stop quickly to avoid an accident. The officers activated emergency lights, and the pickup's driver turned onto another street. Rather than pull to the curb, the driver stopped in the middle of a lane of traffic.

Officer Weiler approached the driver, later identified as Shadden, and asked for his driver's license and proof of insurance. Officer Weiler detected a strong odor of alcohol from Shadden and asked him to step out of the truck. The smell of alcohol persisted after Shadden emerged from the truck. Officer Weiler observed Shadden sway as he walked and noted that Shadden also slurred some of his words and had difficulty communicating, frequently pausing and asking to have questions repeated. Officer Weiler also noted that Shadden's face appeared flushed and his eyes were bloodshot and watery.

Officer Weiler decided to perform some NHTSA standardized field sobriety tests. Because of the grade of the street, he did not conduct a one-leg-stand test. He asked Shadden to perform the walk-and-turn test, however. After the officer instructed Shadden and demonstrated the test, Shadden attempted to perform it. Pursuant to the NHTSA standards, Officer Weiler was trained to look for eight possible clues of intoxication based on an individual's performance of the walk-and-turn test. Under NHTSA protocols, if an individual demonstrates two or more clues, the individual is deemed to have failed the test.

Officer Weiler noted that Shadden failed to maintain his balance while listening to the test instructions and he started to take steps before he was instructed to begin. During the first nine steps, Shadden stopped once, stepped sideways once, raised his arms twice, and failed to place the heel of one foot against the toe of the other foot on four occasions. While turning, Shadden stepped outside the acceptable range of motion. On the final nine steps, Shadden stopped twice, stepped sideways twice, raised his arms five times, and failed to place his heel against his toe five times. Based on these errors, Officer Weiler identified all eight clues of intoxication. 8

Then, the other officer, Officer Goodnight, conducted three nonstandardized sobriety tests: the alphabet test, a counting test, and the finger-to-nose test. Shadden was unable to recite the alphabet from A to Z without a mistake. He counted to 15 correctly but repeated a few numbers when counting back down to 1. In six attempts, Shadden failed to touch his nose correctly during the finger-to-nose test.

Officer Weiler arrested Shadden for DUI. At the police station, Officer Weiler provided Shadden with the implied consent advisory form (DC-27), which included a warning that a test refusal may be used against the individual in a trial for DUI. When Officer Weiler asked if Shadden would submit to a breath test on the Intoxilyzer 5000, Shadden refused. After being Mirandized, Shadden waived his rights and spoke with Officer Weiler. When the officer asked how much Shadden had to drink that evening, Shadden indicated that he had three or four beers. He also volunteered that he had smoked marijuana.

The State charged Shadden with operating or attempting to operate a vehicle while under the influence of alcohol to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2009 Supp. 8-1567(a)(3). Before trial, Shadden filed a motion in limine seeking to prevent the State or witnesses from referring to the field sobriety exercises as "'tests' or other related terms such as pass, fail, or points." In addition, Shadden sought an order requiring the State to refrain from attaching any scientific significance to Shadden's performance on the NHTSA test.

At the hearing regarding the motion, defense counsel argued that such tests "don't pass the Frye test or Daubert test, they have never been tested for reliability or validity." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993); Frye, 293 F. 1013. Defense counsel argued that under that premise, it could be problematic to present the testimony of an arresting officer as an "expert" using

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"scientific tests" and cited rationale from Florida courts as persuasive authority. The district court denied the request, stating:

"Well, the NHTSA field sobriety test that has been standardized [is] recognized in Kansas courts. They are based on statistical research. They have their limitation. .... "Counsel is fully permitted to, in the interrogation of the officer, to cover the limitations of the test, but they are tests and can be so indicated to the jury. They do score these, based upon clues of impairment, to what is a failure. So the walk-and-turn, oneleg-stand test, they are valid in Kansas. .... "The officer may testify in his opinion whether they were 'pass' or 'fail.' It is all subject to a scathing cross-examination by the defense counsel as to how much weight that the jury ought to give these tests in this particular case."

During the jury trial, Officer Weiler testified he believed Shadden "was driving under the influence of alcohol or drugs due to his admissions" and also due to his "sobriety tests, how he failed all those, and the odor of alcohol, [and] bloodshot, watery eyes." In addition, Officer Weiler indicated he had been trained regarding the NHTSA and the tests' indication of impairment. On direct examination, Officer Weiler gave the following testimony regarding the NHTSA:

"Q.

Now, you're trained with regard to percentages, and if a person has this

many clues, it indicates a percentage of whether or not they are .10 over the legal limit, correct? "A. "Q. Yes. If a person exhibits two clues, which you have said is a failure, what is

the percentage that the person is over .10? "A. "Q. "A. "Q. Sixty-eight percent. And that is if they exhibit two of eight clues? Yes. And what is the legal limit in the state of Kansas?

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"A. "Q.

Point zero eight. So it is--the legal limit is even lower than .10 which is recognized by the

NHTSA training? "A. Yes."

On cross-examination, the defense attorney questioned Officer Weiler about the NHTSA standards, making the point that the test results are not reliable if the test is not administered in the prescribed manner. Further, in attempting to attack the officer's testimony regarding the NHTSA-percentage testimony, the defense attorney asked Officer Weiler whether "the converse of 68 percent accuracy is 32 percent inaccuracy." Officer Weiler admitted that was "correct," as did Officer Goodnight when she subsequently testified and was cross-examined. The defense attorney also asked extensive questions regarding how many points were available for scoring and how many points should have been deducted for mistakes made by Shadden. In response to crossexamination questions, Officer Weiler indicated Shadden correctly performed 76 percent of the steps he took during the test. Following a 2-day trial, a jury found Shadden guilty of DUI. For purposes of sentencing, the district court found that Shadden had three prior DUI convictions. The court imposed a sentence of 1 year in jail and a fine of $2,500. The court also imposed court costs, Board of Indigents' Defense Services (BIDS) attorney fees, and a requirement of 12 months of substance abuse treatment upon release from jail. Court of Appeals' Decision

On direct appeal, the Court of Appeals reversed Shadden's conviction and remanded the case for a new trial, finding the district court erred in admitting some, although not all, of Officer Weiler's testimony about NHTSA tests. State v. Shadden, 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). The Court of Appeals concluded it was not error to admit the officer's testimony that a NHTSA field sobriety test was administered 11

and that, based upon the officer's training and experience, the driver failed that test. It was error, however, to admit testimony that took "the additional step of equating a level of certainty or probability to the officer's opinion or to correlate a driver's performance with a specific BAC level." Shadden, 40 Kan. App. 2d at 1114. The Court of Appeals stated that Officer Weiler was "clearly not qualified to testify about the reliability of the NHTSA standards, and no expert testimony was provided to qualify the NHTSA standards under Frye." Shadden, 40 Kan. App. 2d at 1114. Because Shadden had no effective means of cross-examining the reliability of the NHTSA standards, "[t]he result is the officer's opinion that the criminal defendant is intoxicated is given an undeserved scientific credibility." Shadden, 40 Kan. App. 2d at 1114. The Court of Appeals found the error was not harmless due to the possibility that the jury placed undue weight on the field sobriety test results. Shadden, 40 Kan. App. 2d at 1115. Consequently, the Court of Appeals reversed and remanded for a new trial.

In addition, the Court of Appeals addressed a prosecutorial misconduct issue raised by Shadden in which he argued the State violated the district court's order in limine when it asked the officers for their personal opinion on whether Shadden was intoxicated. The Court of Appeals concluded the questions were not a violation of the order and the evidence was admissible. The Court of Appeals further found that two remaining issues had not been preserved before the district court. Those issues were that the district court erred in admitting testimony that Shadden had refused to take a breath test and that the officers created an unconstitutional condition by asking Shadden to submit to a breath test. As to this unconstitutional condition issue, Shadden argued the request to submit to a breath test required him to choose between a waiver of his Fourth Amendment rights in consenting to a breath test and a waiver of his Fifth Amendment rights by refusing to take a breath test.

The Court of Appeals addressed one final issue, holding the district court erred by imposing BIDS attorney fees without first considering Shadden's financial resources and 12

the burden that payments would impose. Shadden, 40 Kan. App. 2d at 1121-22 (citing State v. Robinson, 281 Kan. 538, Syl.

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