A program of the Kansas Department of Transportation

Volume 1, Issue 4 December 2008

DO A WALK THROUGH

Once you have accomplished the protection of the scene, then you must begin to under-stand it. You have to become a part of it, feel it and appreciate what lies before you. Take the time to walk the crime scene from where you believe it starts to where it ends.

As you walk through the scene make mental notes of things that stick out to you. Formulate in your mind how the collision might have occurred. Once you complete the walk through then start to find out what occurred from other officers on the scene, witnesses, and the parties involved if possible.

By Lt. Bill Cochran

Former supervisor to the Accident Reconstruction Unit of the

Topeka Police Department.

When does an accident scene go from being an accident scene to a crime scene? When you change your mind set. For year’s law enforcement, prosecutors, and the public have viewed fatality crashes as “JUST ANOTHER ACCIDENT,” when in reality they are homicide scenes. The deadly weapon used is a motor vehicle.

PRESERVATION OF THE SCENE

One of the most important decisions to be made going from an accident scene to a crime scene is the preservation of the scene. This is the most important step in making that mind set change and to being successful in court. The scene shows the aftermath of what took place but more importantly it holds the keys to your investigation and the secrets as to what really happened. Although traffic control/flow is important, it should not compromise your investigation of the crime. Get traffic directed out of the area. Put up crime scene tape and start a crime scene log. Crime scenes require documentation of who comes and goes out of the crime scene. This scene should not be treated any differently than if you had a dead body with a gunshot wound to the head in a house. You would not let persons roam about the scene without documentation of who they are and when they were there. (cont. page. 2)

Page 2 Street Legal

For example, if the vehicle went off the roadway, a photo should be taken of the tire marks, tire scuff, gouges, scrapes in relationship to the road itself. Photos are great to enhance the forensic map that is generated by measure-ments.

In the age of digital cameras there is never an excuse not to take lots of pictures, and keep in mind you can never have too many pictures. Even if no digital camera is available, even a disposable camera will do. If you are limited in the number of photos to be taken, THINK; make each one count.

MEASUREMENTS

Once all the still photos have been taken, it is time to measure the crime scene. This includes any measurements that need to be collected from the point of impact to all of the evidence near and on the roadway. The investigator should have a documentation sheet which outlines what needs to be measured and a systematic way in which to do it. This helps you keep measurements in order and what was measured.

VIDEO EVIDENCE

In addition to still photos, it is also a good idea

to get video footage of the scene. You may not

have access to a hand-held video recorder, but

most patrol vehicles now have a video recording

system in them. This is an excellent tool which

is under-utilized.

GOING TO COURT

Success in court is dependent upon more than just the preservation, collection and docu-mentation of the crime scene. Success is met if law enforcement has a good partnership with their prosecutor. This is very critical to getting charges filed and a conviction.

PUTTING IT ALL TOGETHER

As more details become available to you,

think about the initial walk through and begin to

process the details you know with the

information reported. Ask yourself, “Does the

information received from witnesses match the

physical evidence?” Once your mind has

processed the information and you have a

mental grasp of the details, conduct another

walk through of the scene to determine if the

physical evidence is explained. Determine if any

physical evidence was missed and attempt to

match it to what persons have reported.

DOCUMENT AND COLLECT EVIDENCE

Now that the scene is secure and you know

what and how things happened, it is time to start

collecting the physical evidence. Determine if

there is any evidence which may be lost due to

weather and time. If this is an issue, determine

if the item can be seized and taken to the police

department to be processed. If not, items such

as tire scuff and yaw should be photographed as

soon as possible. Pictures are one of the best

ways to document the evidence. Make sure

photos show relationship of items to each other

and the roadway.

(Cont.)

(cont. page 3)

Page 3 Street Legal

The prosecutor should be aware of the limitations of scene analysis, mathematical evaluations of the physical evidence and how best to use the information gathered by law enforcement in the courtroom.

To accomplish this, prosecutors should be called out to the scene and see firsthand the crash site. This can be done once the scene has been secured. The prosecutor should become aware of the equipment used in the photographing, measuring and collecting of evidence. The prosecutor should be aware of the terminology used, i.e., critical speed and tire yaw.

Law enforcement should understand the limitations of this type of evidence in court and the equipment used by prosecutors to present the evidence, i.e., Elmos and Powerpoint. Law enforcement should become aware of the way this evidence can best be presented to the court.

Once this is accomplished your next scene

will be a crime scene and not “Just another

accident.”

(Cont.)

The world's first speeding ticket was issued in Dayton, Ohio in 1904. Because of Ohio's impor-tant role in the early automobile industry, the state was the site of numerous firsts in automobile history. Among these firsts was the first speeding ticket for an automobile driver. Police ticketed Harry Myers for going twelve miles per hour on West Third Street.

In a criminal prosecution for DUI, if the court determines the arresting officer lacked reasonable suspicion to stop a vehicle, then any evidence obtained by the officer as a result of the unlawful stop may be suppressed under the exclusionary rule. However, in a driver's license suspension proceeding, even if the court determines the arresting officer lacked reasonable suspicion to stop a vehicle, the exclusionary rule will not be applied to bar evidence obtained as a result of the unlawful stop. Crone v. KDOR, unpublished, 2008 WL 624606(3/7/08)

Coming in January….

Charging Traffic Fatalities.

Benson was charged and convicted of felony DUI. Benson claimed the court violated his constitutional right to confront witnesses (6

th

amendment) when it admitted a calibration certificate for the Intoxilyzer 5000. The court stated, “A calibration certificate is prepared as a routine administrative matter required by the state and is not prepared in anticipation of any particular criminal proceeding. The certificate is non-testimonial in nature and the defendant possessed no constitutional right to confront the individual who performed the calibration test.” The court also looked at all the other states that have determined the confrontation clause violation is without merit. Apprendi was also discussed. State v. Benson unpublished 192 P.3d 689 (9/26/08)

Street Legal Page 4

(cont. on page 5)

New Kansas Law provides for murder charges of unborn child

When Terri and Darren Brooks found out their 14-year-old daughter, Chelsea was pregnant, they were not happy, but they decided Chelsea would keep the baby and they would help her raise it. Then, last summer (2006), two weeks before Chelsea was due, she was found murdered. The accused killer, Chelsea’s boyfriend, and the men he hired to help him kill her were only charged with one murder. That’s because in 2006 Kansas law says when a pregnant woman is murdered, only her death can be prosecuted, not her unborn child’s.¹

(Prosecutor’s theory of the case: Robinson was Alexa’s father, which was confirmed by DNA. Alexa was the name given to Chelsea’s unborn child. Robinson arranged Chelsea’s killing because he was afraid her parents would have him charges with statutory rape. In Kansas, no one under the age of 16 can consent to having sex)

So the Brooks summoned the Kansas Legislature to fix the problem. In May of 2007, Alexa’s Law was passed.

K.S.A. 21-3452 reads as follows:

(a) This section shall be known and may be cited as Alexa’s Law.

(b) As used in this section:

(1) ‘Abortion’ means an abortion as defined by K.S.A. 65-6701, and amendments thereto.

(2) ‘Unborn child’ means a living individual organism of the species Homo sapiens, in utero, at any stage of gestation from fertilization to birth.

(c) This section shall not apply to:

(1) Any act committed by the mother of the unborn child;

(2) Any medical procedure, including abor-tion, performed by a physician or other licensed medical professional at the request of the preg- nant woman or her legal guardian; or

(3) The lawful dispensation or administration of lawfully prescribed medication.

(d) As used in K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3405, 21-3412, 21-3414, 21-3439 and 21-3442, and there to , ‘person’ and ‘human being’ also mean an unborn child.

(e) The provisions of this act shall be part of and supplemental to the Kansas criminal code.

So...what does this have to do with traffic?

Please note subsection (d). The list includes: K.S.A. 21-3404 (involuntary manslaughter) K.S.A. 21-3414 (aggravated battery) and K.S.A. 21-3442 (involuntary manslaughter while driving under the influence of alcohol or drugs).

So, if you have a woman, who is in any stage of pregnancy (fertilization to birth), and she loses the fetus because of a collision, the fetus counts as a “human being” or ”person” as defined in all of the statutes listed in subsection (d). If both the woman and the fetus die due to a car crash involving a drunk driver, it appears two counts of DUI manslaughter could be charged. Please note, if a woman who is drunk and is driving and kills her own fetus, she cannot be charged with the death. (K.S.A. 21-3452(c)(1).

Street Legal Page 5

For further information regarding times and location contact Karen Wittman

kstsrp@gmail.com

(Cont.)

If you wish to continue receiving the Street Legal newsletter please contact Karen Wittman

Please Note:

In April 2009 the newsletter will be sent

electronically.

If you are not already receiving the Street Legal newsletter by e-mail, please contact

Karen Wittman with your e-mail address.

kstsrp@gmail.com

Lastly, because of Alexa’s Law, K.S.A. 21-3440 (injury to a pregnant woman) and K.S.A. 21-3441 (injury to a pregnant woman by vehicle) have been repealed.

The rest of the story: Three persons were charged with Chelsea’s death, Elgin Ray Robinson, Jr. (capital murder), Ted Burnett (convicted of aggravated kidnapping and capital murder) and Everett Gentry (guilty of murder as a juvenile). In June 2008, 51-year-old Ted Burnett was sentenced to life in prison without parole (jury decided against death penalty), and Everett Gentry, 19, (17 at the time of the murder) plead guilty in 2006 and received life in prison with parole possible after 25 years. He testified in the capital murder trial of Elgin Ray Robinson Jr. Robinson has been convicted of Capital murder (murder for hire), aggravated kidnapping, aggravated indecent liberties with a child (sex with a girl between ages 14 and 16), and violating a protective order. During the sentencing phase the jury could not agree on the death penalty so the defendant will almost certainly get life without parole. His sentencing date is Dec 5

th in

Sedgwick County.

¹ “Family Asks for ‘Alexa’s Law’ to enforce murder charges for killing a fetus” story by Gena Terlizzi, Channel 49 News KTKA, aired January 18, 2007.

DUI Tips Jefferson County Sheriff’s Office

December 17

MADD 22nd Annual Candlelight Vigil

December 13, Topeka at 2 p.m.

National Drunk & Drugged Driving Prevention Month (3D Month)

December 2008

Drunk Driving. Over the Limit Under Arrest National Crackdown

December 13-31, 2008

Mid-Atlantic DUI Conference

Virginia Beach, VA, March 24 & 25, 2009

LifeSavers 2009 Nashville, TN

Sun., March 29 & Tues., March 31, 2009

IPTM Symposium on Alcohol and Drug Impaired Driving Enforcement

St. Pete’s Beach, FL, June 9-11, 2009

GHSA Annual Conference, Savannah, GA

August 30-September 2, 2009

Kansas Traffic Safety Resource Prosecutor

Karen C. Wittman

Box 1656

Topeka, KS 66601-1656 This year’s national holiday safety blitz

campaign runs from December 13th

through December 31st.

I encourage the law

enforcement community

and prosecutors to show

zero tolerance this holiday

season. Let’s make sure

that those traveling on

Kansas roads know that

no matter what they drive,

a passenger car, pickup,

sport utility vehicle or

motorcycle, if they are

caught driving while

impaired, they will be arrested and

zealously prosecuted. We want drivers to

know that driving while impaired is simply

wrong and is not worth the risk

of killing themselves or

s o m e o n e e l s e . T h e

consequences are serious and

real. Whether drivers have had

way too many or just one too

many, it’s not worth the risk.

The song, “I’ll be home for

Christmas” kind of loses its

meaning if you are in jail, the

hospital or worse. Please have

a safe and festive holiday

season and I look forward to

working with all of you next year.

If any law enforcement agency is in

need of training, please contact

me. My training

is FREE.

Karen C. Wittman

Kansas TSRP