State v. Haislip, 56886

• Decision Date: 21 June 1985
• Docket Number: No. 56886,56886
• Citation: 237 Kan. 461,701 P.2d 909
• Parties: STATE of Kansas, Appellee, v. Ivory L. HAISLIP, Appellant.
• Court: Kansas Supreme Court

Page 909

701 P.2d 909

237 Kan. 461

STATE of Kansas, Appellee, v. Ivory L. HAISLIP, Appellant.

No. 56886.

Supreme Court of Kansas.

June 21, 1985.

Syllabus by the Court

1. K.S.A.1984 Supp. 22-3412(3) allows for substitution of an alternate juror after deliberations have begun as long as the alternate has not been discharged. There is no right under Kansas law to the original twelve jurors. However, the defendant does have the right to a verdict reached only after full participation of all of the jurors who ultimately return the verdict. Therefore, if an alternate is substituted after deliberations have begun, the jury must be instructed to begin deliberations anew.

2. Under Kansas law, the standard to determine whether the trial court erred in dismissing and substituting a juror after deliberations have begun is the same as the standard for determining whether the court erred in discharging a juror prior to deliberations. The standard to be applied by the trial court is that it find reasonable cause to dismiss the juror.

3. The trial court has discretion in deciding when to make a substitution on the jury. It also has discretion in the procedure to be used to ascertain whether a substitution should be made. It is not absolutely necessary that a hearing be held, and it cannot be said the trial court erred unless the defendant can show he was prejudiced by the lack of one.

4. The granting of a continuance lies within the sound discretion of the trial court and its refusal to grant a continuance will not be overturned in the absence of a clear abuse of discretion.

5. When a party seeks to admit hearsay testimony but fails to assert the ground upon which it would be admissible, the trial judge is not called upon to make the requisite finding for its admission into evidence. Under these circumstances the defendant is precluded from asserting the ground for the first time on appeal as a basis for error.

6. Hypnosis has not been generally accepted in the scientific community as a reliable method of restoring memory. Therefore, where a witness underwent hypnosis for the purpose of refreshing or restoring his memory of the crime, he may not later testify to those events first recalled during or subsequent to hypnosis.

7. A witness who has been hypnotized may testify to facts recalled prior to hypnosis.

8. Prior to admitting any testimony from a witness who underwent hypnosis, the trial court must conduct a pretrial hearing in order to determine the extent of the witness's prehypnotic recollection (thereby establishing the boundaries of admissible testimony) and whether the hypnosis was so impermissibly suggestive as to require exclusion of in-court testimony with respect to such prehypnotic recollection.

9. The trial court has discretion in deciding whether to grant funds to an indigent defendant in a criminal prosecution to obtain an expert witness. The decision will not be overturned absent a clear abuse of the exercise of the power of discretion.

10. The granting or denial of a motion to provide funds for investigative services to counsel for an indigent defendant in a criminal prosecution is a matter which rests within the sound discretion of the trial court. The trial court's ruling will not be overturned in the absence of a showing that the exercise of its power of discretion has been abused.

11. The purpose of the voir dire examination is to enable parties to select jurors competent to judge and determine the facts and issues without bias, prejudice or partiality. The nature and scope of the voir dire examination is within the sound discretion of the trial court.

12. The decision of whether to grant a motion for change of venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is cast upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality.

13. When a witness is found to be "unavailable" within the meaning of K.S.A. 60-459(g), his prior recorded testimony may be admitted against the defendant where the defendant had a previous opportunity to examine the witness on the same issues in a prior trial.

Thomas E. Malone of Redmond, Redmond, O'Brien & Nazar, Wichita, argued the cause and was on brief for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal from a conviction for murder in the first degree (K.S.A. 21-3401), and aggravated battery of a law enforcement officer (K.S.A. 21-3415). This conviction followed the third trial of Ivory L. Haislip (defendant-appellant) on the charge of first-degree murder of Officer Paul Garofalo. This is also his third appeal.

The facts were stated in State v. Haislip, 234 Kan. 329, 329-33, 673 P.2d 1094 (1983), as follows:

"The facts reveal Officers Paul Garofalo and Randy Mullikin of the Wichita Police Department were on routine vehicular patrol in the early morning hours of November 8, 1980. At 3:30 a.m. they were proceeding west on 9th Street. Garofalo was the driver. They passed through the intersection of 9th and Washington and stopped one-half block west where they observed two black women and a man. They had a brief conversation with one of the women and then turned back to the east. They parked in front of an after-hours bar, the Chicken Shack. It is located on the second story of a building located on the northeast corner of 9th and Washington streets. A number of people had congregated on the sidewalk there.

"The officers spoke to Regina Franklin and Krystal Butler. Both women stood on the passenger side of the car and conversed through the open front window. Krystal was to the front and Regina to the rear of that window. Officer Garofalo was leaning from his position on the driver's side across Officer Mullikin to converse with the women. After a short conversation Mullikin heard a loud noise he thought was a car backfiring. The noise was a shotgun blast fired twice at close range into the head and back of Officer Garofalo through the car window on the driver's side. A few stray pellets hit Mullikin's leg.

"After the second shot Mullikin rolled out of the car and sought cover. When he looked back he saw people running but no gunman. He returned to the car and radioed the dispatcher for help. Officer Garofalo lay in the driver's seat, his head tilted back, bleeding profusely. With the help of a person identifying himself as a paramedic, Mullikin lowered Garofalo from the car to the pavement outside the car where they attempted to administer C.P.R. There were no vital signs. At this time Mullikin observed a shotgun lying beside the car. He picked it up and placed it in the car.

"Officer Pete Dubovich and other officers arrived at the scene shortly thereafter. They observed Officer Mullikin, who was wounded and appeared in shock. Dubovich took charge and secured the area. In so doing he discovered a pool cue case lying on the north curb just to the east of Washington Street. He told a rookie policeman to guard it.

"Next Dubovich observed a black man, later identified as Dale Jackson, standing beside Paul Garofalo, together with Larry Mitchell, the person who claimed to be a paramedic. Officer Dubovich authorized Mitchell to assist. The ambulance arrived. Officer Garofalo died from the shotgun wounds to the back of his head.

"While Officer Dubovich was busy sealing off the area and doing preliminary investigative work, he forgot about the pool cue case. At trial he testified he felt it was safe with the rookie standing guard. He returned an hour or two later to discover both the pool cue case and the rookie gone. The case was subsequently found a block away on Washington Street. Officer Dubovich saw Anthony Ray Martin at the scene among the crowd which gathered after he arrived.

"Officer Mullikin informed the policemen that an individual in a white three-piece suit (Dale Jackson) had information about the crime. Jackson was taken to the City Building for interrogation. After he was promised protection and discussed the matter with his girlfriend, Jackson stated Ivory Haislip was the person who shot Officer Garofalo. Jackson had made prior inconsistent statements.

"Mullikin also identified Ivory Haislip as the man he and Garofalo had seen one-half block west prior to the shooting. His first description of the man was inconsistent with Haislip's actual appearance.

"Regina Franklin, one of the women talking to the officers when the shooting occurred, talked to the police the next day. She picked Haislip's photograph out of a group when she was directed to pick out the killer.

"At 4:30 a.m., November 9, 1980, Ivory Haislip was arrested for the murder of Officer Garofalo.

"Police later were informed Haislip went to the home of Dorothy Jones and Hubert Jeffries late on the Saturday night of the shooting. They stated he appeared high and when Ms. Jones mentioned the killing of the officer, Haislip said, 'I did it.' Neither of them believed him.

"The clincher in the case against Haislip was the statement of Anthony Ray Martin. Martin had been picked up by the police on December 11, 1980, on other matters but was interviewed by the district attorney about the Garofalo homicide. Martin identified Haislip as the murderer. He was not held on the charges for which he was picked up. Martin had previously told the police he saw the man with the pool cue case with the gun but did not see his face.

"The case against Haislip appeared airtight, particularly to the prosecutor's office because at that time nothing was known of a statement of police informant Al Bowens to the police which would later introduce a new element into the case. The prosecutor did not hear of Bowens' statement until December 28, 1981.

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