No. 92,413
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MICHAEL J. BROWN,
Appellant.
SYLLABUS BY THE COURT
1. Where a defendant claims that his or her statutory right to a speedy trial under K.S.A. 22-3402(1) has been violated, any delay caused by the judge granting the defendant's motion to continue the jury trial is the result of the application of the defendant.
2. Under the facts of this case, the delay from the date the judge granted defendant's motion for continuance of trial until the rescheduled trial date was chargeable against the defendant for speedy trial purposes pursuant to K.S.A. 22-3402(1).
3. A trial judge's ruling on a challenge to a prospective juror for cause will not be disturbed on appeal unless it is clearly erroneous or an abuse of discretion.
4. The failure to excuse a prospective juror for cause does not constitute a ground for reversal unless, as a result, the defendant was prejudiced.
5. Under K.S.A. 22-3410(2)(g), a prospective juror may be challenged for cause if he or she was a witness to the act or acts alleged to constitute the crime.
6. Under K.S.A. 22-3410(2)(i), a prospective juror may be challenged for cause when that individual's state of mind with reference to the case or any of the parties to the case is such that the court determines there is doubt that the juror can act impartially and without prejudice as to the substantial rights of any party.
7. No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.
8. K.S.A. 2004 Supp. 21-3107(2)(b) defines a lesser included crime as: "a crime where all elements of the lesser crime are identical to some of the elements of the crime charged."
9. Driving under the influence of alcohol as provided in K.S.A. 2004 Supp. 8-1567(a)(2) is a lesser included offense of involuntary manslaughter while driving under the influence of alcohol because all of the elements of K.S.A. 2004 Supp. 8-1567(a)(2) are identical to some of the elements of K.S.A. 2004 Supp. 21-3442.
10. A claim of multiplicity may be raised for the first time on appeal when necessary to serve the ends of justice and to prevent a denial of fundamental rights.
11. Multiplicity is the charging of two or more counts in a complaint where only a single wrongful act is involved. The test to determine whether the charges in a complaint or information are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.
12. The charges of involuntary manslaughter while driving under the influence of alcohol (K.S.A. 2004 Supp. 21-3442) and driving under the influence of alcohol (K.S.A. 2004 Supp. 8-1567[a][2]) are multiplicitous.
13. When a defendant is convicted of two offenses which are multiplicitous, the defendant should be sentenced only on the more severe offense.
14. Under the facts of this case, the special sentencing provision of K.S.A. 2002 Supp. 21-4711(c)(2) only applies to convictions for involuntary manslaughter while driving under the influence of both alcohol and drugs.
Appeal from Washington District Court; THOMAS M. TUGGLE, judge. Opinion filed December 23, 2005. Affirmed in part, reversed in part, sentence vacated, and case remanded with directions.
Rick Kittel, assistant appellate defender, for appellant.
Kim W. Cudney, county attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., GREENE and BUSER, JJ.
BUSER, J.: In November 2003, Michael J. Brown was convicted by a jury of involuntary manslaughter while operating a vehicle under the influence of alcohol (K.S.A. 2004 Supp. 21-3442) and driving under the influence of alcohol (K.S.A. 2004 Supp. 8-1567[a][2]). Brown appeals his convictions and sentences. We affirm in part, reverse in part, vacate the sentence, and remand for resentencing.
Factual and Procedural Background
On the evening of April 15, 2003, Clay Stauffer was driving westbound on Highway 36 in Washington County when he noticed headlights approaching from the south on an intersecting road. Stauffer saw the car make a wide turn into the westbound lane of Highway 36 heading east. Stauffer attempted to brake and swerve around the car, but as he swerved to the left, the passenger side of his vehicle collided with the passenger side of the other vehicle. Stauffer was driving about 65 miles per hour when the "big collision" occurred and his car's air bags deployed.
Following the collision, Stauffer spoke to the occupants of the other car. The driver of the vehicle was Michael Brown. Brown's wife, Ruth Brown, and their son, Chase Brown, were passengers.
Washington County Sheriff Bill Overbeck, Deputy Larry Wenzl, and Deputy Scott Miller were dispatched to the scene. When Wenzl arrived he found Brown and his son standing beside their vehicle. Brown told the deputy he was not injured but his son had an injured leg and his wife, who remained in the car, was injured. Wenzl talked to Ruth, who told him her stomach hurt, and he observed a laceration on her chin. Wenzl provided emergency care for Ruth until medical personnel arrived.
Wenzel spoke to Brown about the collision. During this conversation, Wenzl noticed Brown's eyes were bloodshot and he smelled of alcohol. Both Wenzl and Miller observed a bucket in the backseat of Brown's car containing three unopened beer cans. Miller also seized an open beer can from the side of the road, 5 to 7 feet away from Brown's vehicle.
Brown was transported by ambulance to the Washington County Hospital, along with his wife and son. Wenzl spoke with Brown again at the hospital. Brown told the deputy he was heading north on a gravel road and pulled onto Highway 36, where he was struck by a car he did not see. Brown admitted he had consumed three beers between 3 p.m. that afternoon and the time of the accident. At Wenzl's request, Brown provided a blood sample to determine whether Brown's blood alcohol level was in excess of the legal limit. A Kansas Bureau of Investigation laboratory test later revealed that Brown had a blood alcohol level of 0.10 grams of alcohol per 100 milliliters of blood.
Ruth was treated at Washington County Hospital by a family practice physician, Dr. David Hodgson, who conducted a series of clinical examinations, medical tests, and procedures. The following morning, Ruth's condition began to deteriorate and she was airlifted to Bryan West Hospital in Lincoln, Nebraska. Following surgery by Dr. Ronald Jex that afternoon to repair a tear in her aorta, Ruth's condition worsened and she died that evening.
Brown was charged with involuntary manslaughter while operating a vehicle under the influence of alcohol or drugs, driving under the influence of alcohol, transporting an open container of an alcoholic beverage, and a traffic infraction for improper turning. Following a jury trial, he was convicted of involuntary manslaughter while operating a motor vehicle while under the influence of alcohol and driving under the influence of alcohol. Brown was sentenced to a total of 162 months' imprisonment. He filed a timely appeal.
Speedy Trial
On appeal, Brown argues the district court erred in denying his motion to dismiss for violation of his right to a speedy trial because while he was in custody he was not brought to trial within 90 days of his arraignment, in violation of K.S.A. 22-3402(1).
In particular, we are confronted with the question of how much delay is properly attributable to Brown due to his motion for continuance of jury trial following arraignment. The question of whether there is violation of Brown's statutory right to speedy trial is a matter of law over which an appellate court has unlimited review, especially if the facts are undisputed. State v. Davis, 277 Kan. 309, 330, 85 P.3d 1164 (2004).
The facts in this case are undisputed. Brown was in jail pending trial. He was arraigned on June 4, 2003. He pled not guilty, and a trial date was set for August 20, 2003. On July 30, 2003, Brown filed a motion for continuance of the jury trial. In support of his motion Brown claimed: "Counsel needs additional time to retain expert witness to testify on the defendant's behalf." Two days later, on August 1, 2003, the court heard and granted Brown's motion and set a new trial date of October 27, 2003.
On October 27, 2003, the court notified defense counsel that the county attorney had fallen ill and the trial would be continued. On November 6, 2003, the court held a hearing to discuss rescheduling the trial for a second time. On November 7, 2003, a telephone conference call was held and a new trial date of November 20, 2003, was set by the court. On both November 6, 2003, and November 7, 2003, the county attorney advised the court there were no speedy trial concerns.
On November 13, 2003, the defendant filed a motion to discharge for violation of the defendant's speedy trial rights. The court denied the motion. The case proceeded to trial on November 20, 2003.
Under the speedy trial statute, K.S.A. 22-3402(1), a defendant held in custody solely by reason of a criminal charge must be brought to trial "within ninety (90) days after such person's arraignment on the charge . . . unless the delay shall happen as a result of the application or fault of the defendant . . . ." (Emphasis added.)
A defendant waives his or her statutory right to a speedy trial by requesting or acquiescing in the granting of a continuance, and a defense counsel's actions are attributable to the defendant in calculating speedy trial violations. State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002); State v. Southard, 261 Kan. 744, 748, 933 P.2d 730 (1997).
The specific issue for our consideration is whether the delay after Brown's motion to continue was granted is attributable to him. Although, as the authorities discussed below show, there is a further question whether the time between the filing of the motion to continue and the ruling is also attributable to Brown, that question was not presented by the parties and we need not reach it under the facts of this case.
Brown argues he should only be charged with the delay from the initial trial date (August 20, 2003) until the rescheduled trial date (October 27, 2003). Under this theory, Brown was incarcerated 101 days from the date of arraignment until commencement of jury trial in violation of his right to a speedy trial.
The State counters that Brown should be charged with the delay from the time his motion for continuance of jury trial was granted (August 1, 2003) until the rescheduled trial date (October 27, 2003). According to the State's theory, Brown was incarcerated awaiting trial only 82 days from the date of arraignment until commencement of the jury trial in full compliance with his right to a speedy trial.
Our Supreme Court has addressed the speedy trial ramifications of delays attributed to a defendant's application or fault in a variety of contexts. For example, in State v. Southard, 261 Kan. 744, the Supreme Court approved the trial court's ruling in attributing all the time between arraignment and a motions hearing to the defendant because defense counsel requested a hearing date for potential motions. The Supreme Court noted that the clause in K.S.A. 22-3402(1) pertaining to delays caused by the application or fault of the defendant included a reasonable time for the parties to brief issues and the court to decide them "as part of the delay resulting from defendant's filing a motion." 261 Kan. at 749. Moreover, even if the defense never filed any motions during that interim, the time was chargeable to the defendant because the court was accommodating the defendant. 261 Kan. at 749-50.
In other cases, the Supreme Court has attributed delays to the parties based upon the date a motion for continuance was filed. See State v. Crane, 260 Kan. 208, 215-16, 918 P.2d 1256 (1996) (State filed a motion for continuance requesting independent mental examination after defense expert's report on defendant's insanity defense; because the State's need for examination was caused by defendant's insanity defense, time from the State's motion for continuance until State's expert's report was filed was chargeable to defendant); City of Dodge City v. Downing, 257 Kan. 561, Syl. ¶ 2, 894 P.2d 206 (1995) (delay caused by filing of motion to suppress is charged to defendant; calculated from time motion was filed to the time the court has had a reasonable period to rule on the same); State v. Bafford, 255 Kan. 888, 892-93, 879 P.2d 613 (1994) (charging the State for time between the time defendant is found to be competent to stand trial and the date the defendant filed a motion for continuance).
Brown cites State v. Hines, 269 Kan 698, 7 P.3d 1237 (2000), in support of his position that the original trial date is controlling in counting time for speedy trial purposes when a defendant applies for a continuance of trial. Hines is unavailing as precedent, however, because the language cited dealt with a different subsection, K.S.A. 22-3402(3)(c), which is now found in K.S.A. 2004 Supp. 22-3402(5)(c), and markedly different case facts.
The present case is factually distinguishable from Hines. As characterized by our Supreme Court, Hines was a case wherein "the defendant requested no continuances, and none of the delays in bringing him to trial was by reason of his application or fault." 269 Kan. at 702. Unlike Hines, in the present case, the defendant specifically applied for and received an almost 3-month continuance of trial to retain an "expert witness to testify on the defendant's behalf."
Secondly, the case at bar is distinguishable from Hines because our Supreme Court did not interpret the relevant subsection at issue, K.S.A. Supp. 22-3402(1), which specifically relates to trial delays attributable to "the application or fault of the defendant." To the contrary, our Supreme Court observed in Hines that a "substantial portion" of the delay in bringing Hines to trial "was based upon a court-ordered continuance under K.S.A. 22-3402(3)." 269 Kan. at 702. This delay of almost 3 months was occasioned because "[o]n the first trial date of January 25, 1999, the State was granted a continuance under K.S.A. 22-3402(3)(c) to obtain material evidence." 269 Kan. at 703. Significantly, subsection (3) contained the following language that is not found in subsection (1): "Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date." (Emphasis added.)
In summary, Hines addressed a factual and legal scenario wherein the State (not the defendant) was granted a continuance of trial based upon an entirely different statutory subsection (which contains language specifically referencing "the original trial date" not found in relevant subsection [1] of the speedy trial statute). Those are not the facts or the law relevant here, and the same could be said for State v. White, 275 Kan. 580, 67 P.3d 138 (2003) ("We hold that the 90-day period under K.S.A. 22-3402[3][c] is counted from the date of the trial setting, not from the date on which the motion was granted." [Emphasis added.]).
Considering these authorities and facts of the present case, several reasons compel our conclusion that Brown's right to a speedy trial was not violated. First, the statutory language in K.S.A. 22-3402(1) refers to delays attributable to "the application or fault" of the defendant while K.S.A. 22-3402(3)(c) refers to continuances for specific reasons and specific time periods "from the original trial date." Accordingly, there is a reasonable basis to conclude that the Kansas Legislature did not intend delays attributable to different causes to be counted in the same manner. Second, the Supreme Court has consistently ruled, in a variety of factual contexts, that delay occasioned by a defendant's application for a continuance under K.S.A. 22-3402(1) is attributable to the defendant and, therefore, excludable when counting time for statutory speedy trial purposes. Third, there is no explicit language in Hines, White, or the more recent case of State v. Davis, 277 Kan. 231, 233-34, 83 P.3d 182 (2004), that intimates, let alone instructs that our Supreme Court's counting of days in interpreting subsection (3)(c) applies to subsection (1) of the speedy trial statute.
In overruling Brown's motion for discharge, the trial court stated: "The initial continuance was at the behest of defendant. Because the continuance was sought by defendant it seems logical that the time chargeable to defendant should be from the time his motion was granted (August 1, 2003) to the continued trial date (October 27, 2003)." We agree.
Where a defendant claims that his or her statutory right to a speedy trial under K.S.A. 22-3402(1) has been violated, any delay caused by the judge granting the defendant's motion to continue the jury trial is the result of the application of the defendant. Pursuant to K.S.A. 22-3402(1), the delay from the date the judge granted Brown's motion for continuance of trial until the rescheduled trial date was chargeable against the defendant for speedy trial purposes. As a result, we hold that Brown's right to a speedy trial pursuant to K.S.A. 22-3402(1) was not violated.
Challenge for Cause
On appeal, Brown contends the district court committed reversible error when it overruled his objection and refused to strike a prospective juror for cause. Brown did not exercise a peremptory challenge to remove the prospective juror.
Our standard of review is well settled. A trial judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned. State v. Manning, 270 Kan. 674, 691, 19 P.3d 84 (2001). As a result, "[a] trial judge's ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown. [Citation omitted.]" State v. Doyle, 272 Kan. 1157, 1166, 38 P.3d 650 (2002). Moreover, the failure to excuse a prospective juror for cause is not a ground for reversal unless the defendant was prejudiced as a result. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998).
During voir dire, the trial court asked the jury panel members if they had any personal knowledge of the alleged crime or personal relationship with any of the parties. A potential juror, J.F., responded:
"[J.F.]: When the defendant was being held in the local jail the sheriff called me to counsel him because he wasn't eating. And I spent some time with him in that situation.
"THE COURT: Okay. Was there any discussion of the facts of the case?
"[J.F.]: Yes, sir.
"THE COURT: All right. Well, because of that personal relationship, I think that would preclude you from serving, unless you felt you could put that aside and serve.
"[J.F.]: I don't think it would necessarily affect me. But I think the Court should be aware of that or the attorneys in charge be aware of that.
"THE COURT: What your responsibility would be would be to set that aside. That wouldn't be proper discussion in the jury room.
"[J.F.]: No.
"THE COURT: And you would decide it based solely on the evidence presented here today?
"[J.F.]: That would be my responsibility, yes.
"THE COURT: And also just going a little bit further, the defendant has no responsibility, no obligation to testify. And if he chose not to testify the jury cannot, by reason of that, draw an inference that he had something to hide or that he should have gotten up and told the story. The burden is solely on the state to prove that. So again, if there was anything in that regard, it would be–you understand that would not be–
"[J.F.]: Certainly. I–whatever he shared with me there was between him and my role as pastor. It wouldn't–my thinking anyway–affect my judgment of the evidence.
"THE COURT: All right. And you do–and just so it's clear, you would be–and all the jurors would be–sitting in judgment in this case. In other words, they would have to make a judgment whether the defendant was guilty or not guilty.
"[J.F.]: Correct."
In response to questioning by the prosecution J.F. indicated, "As I stated to Judge earlier, I was called to the Washington County Detention Center to do some counseling with the defendant for–when he was first arrested."
Finally, during defense counsel's questioning of the jury panel, J.F. was again questioned:
"MR. HICKMAN: I don't see any hands. And [J.F.], the–if I understood you correctly, you had counseled Mr. Brown sometime shortly after this incident occurred. Is that correct?
"[J.F.]: Yes, sir.
"MR. HICKMAN: All right. And I believed you said–without going into any actual details–that you–he had discussed with you some facts of the case; is that correct?
"[J.F.]: From his perspective, yes.
"MR. HICKMAN: Okay. Now [J.F.], if it came about that Mr. Brown did not testify today or tomorrow or did not testify at the trial, would you be able to set aside, to ignore the information that you learned from him in your deliberations and in reaching a verdict here today?
"[J.F.]: I believe so. I think what he said in that situation was said under the duress of his own mourning, so–kind of a different situation than what we have here.
"MR. HICKMAN: Your Honor, I'm going to ask–in light of the fact that he's received personal–has personal knowledge, that he has talked with the defendant prior to this, that he has knowledge of the facts of the case from the defendant himself, that I would ask the Court to excuse [J.F.] for cause.
"THE COURT: This prospective juror has previously stated clearly that he can separate the two and could decide the case in an objective manner. The motion to disqualify is denied."
After passing the remainder of the jury panel for cause, the State and Brown each exercised eight peremptory challenges. Neither party exercised a peremptory challenge to strike J.F. and, as a result, he served on the jury.
At trial, Brown asked the court to strike J.F. because "he has knowledge of the facts of the case from the defendant himself." In his motion for a new trial, Brown simply argued the juror should have been dismissed for cause.
On appeal, Brown now argues the court erred in refusing to strike J.F. under two subsections of K.S.A. 22-3410. First, he argues the juror should have been dismissed under subsection (2)(g) which allows a juror to be challenged for cause if he or she was "a witness to the act or acts alleged to constitute the crime." K.S.A. 22-3410(2)(g). Second, he argues J.F. should have been dismissed under subsection (2)(i) which allows a juror to be challenged for cause when "[h]is state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party." K.S.A. 22-3410(2)(i).
K.S.A. 22-3410(2)(g) provides that a prospective juror may be challenged for cause if he was "a witness to the act or acts alleged to constitute the crime." Brown candidly concedes "there is no indication [in] the record that [J.F.] was present at the scene on April 15, 2003 when Michael Brown was involved in the automobile accident that is central to this case." Brown presents the novel argument, however, that "as a person who had information regarding the substantive facts of the case, information that came directly from one of the parties in the case, [J.F.] could have been considered a witness."
Brown's argument runs afoul of the plain and ordinary meaning of the words in this statutory section. "When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed . . . . [Citation omitted.]" Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). Moreover, in the interpretation of statutes, ordinary words are to be given their ordinary meaning. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
K.S.A. 22-3410(2)(g) only applies to eyewitnesses–witnesses to the act or acts that constitute the criminal conduct for which the defendant is on trial. In the present case there was no evidence that J.F. observed Brown at or about the time of the collision. Given that the provisions of K.S.A. 22-3410(2)(g) were inapplicable to J.F.'s knowledge of certain facts relating to Brown, the trial court did not abuse its discretion in failing to dismiss J.F. pursuant to this subsection.
Brown further contends the trial court erred in not striking J.F. from the jury panel pursuant to K.S.A. 22-3410(2)(i), which allows a juror to be challenged for cause when "[h]is state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he can act impartially and without prejudice to the substantial rights of any party." See State v. Doyle, 272 Kan. 1157, 1166, 38 P.3d 650 (2002). In particular, Brown "simply asserts that, despite [J.F.]'s protestations to the contrary, his state of mind was indelibly affected by his jailhouse conversation with Mr. Brown so as to create a real doubt that [J.F.] could act impartially and without prejudice to Mr. Brown's substantial rights."
Brown's speculative claim is without any factual basis and directly contradicted by the record testimony wherein J.F. repeatedly assured the trial court that he understood it would be improper to consider the pretrial conversation he had with Brown, and that it would be his responsibility to only consider the evidence presented in court. As a result, there was a solid factual basis for the trial court's finding that J.F. "has previously stated clearly that he can separate the two and could decide the case in an objective manner."
There are no facts in the record to support a conclusion that J.F. exhibited any partiality or prejudice which disqualified him from jury service. Moreover, J.F.'s sworn testimony was to the contrary. The trial court did not abuse its discretion in failing to dismiss J.F. pursuant to K.S.A. 22-3410(2)(i).
Brown next alleges the trial court erred in not conducting its voir dire examination of J.F. outside the presence of the jury. Brown's counsel, however, did not object to the voir dire conducted by the trial court or suggest that in camera questioning of J.F. was necessary.
A party may not raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule. State v. Flynn, 274 Kan. 473, 502, 55 P.3d 324 (2002). The trial court never had an opportunity to consider the validity of this argument and, therefore, potentially correct any errors. Moreover, as a general rule, issues not raised before the trial court may not be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Finally, Brown has provided only scant, nonspecific case law precedent to support this claim of error. For all these reasons this claim is without merit.
We note, sua sponte, that Brown did not challenge J.F. for cause during voir dire pursuant to K.S.A. 22-3410(2)(h), or raise the applicability of this particular subsection on appeal. This subsection allows a juror to be challenged for cause when "[h]e occupies a fiduciary relationship to the defendant or a person alleged to have been injured by the crime or the person on whose complaint the prosecution was instituted." K.S.A. 22-3410(2)(h). No relevant case law has been found which defines a fiduciary relationship as contemplated by K.S.A. 22-3410(2)(h). Kansas appellate courts have discussed the meaning of a "fiduciary relationship" in a variety of contexts, however, resulting in the term being defined by the Kansas Judicial Council as "any relationship of blood, business, friendship or association in which one of the parties places special trust and confidence in the other." PIK Civ. 3d 125.01.
As noted earlier, we do not generally consider matters for which no specific contemporaneous objection is made at trial. Although Brown objected in a general fashion to J.F.'s service on the jury, "a contemporaneous objection must be made and it should be specific enough that the trial judge can rule intelligently upon the objection . . . ." City of Overland Park v. Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993).
Brown's failure to state this specific ground for challenging J.F. at the trial level precludes our review because, as a result of this failure, neither counsel nor the trial court questioned J.F. to determine whether his pretrial counseling of Brown established a fiduciary relationship at the time of the encounter and, if so, whether J.F. considered that relationship to exist at the time of trial. Finally, an issue not briefed by the appellant is deemed waived or abandoned. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). For all of these reasons this particular issue is not properly before us for consideration.
The failure to excuse a juror for cause is not a ground for reversal unless, as a result, the defendant was prejudiced. State v. Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998). Although we have found no abuse of discretion in the trial court's ruling, we address Brown's claim that this ruling resulted in prejudice.
Brown speculates: "It is entirely possible in this case that Mr. Brown, who testified at trial, might have wanted to call [J.F.] as a witness to corroborate his own trial testimony." There is nothing in the record to support this conjecture. If true, Brown's counsel was obliged to object upon that specifi