State v. Lassley, 48001

• Decision Date: 24 January 1976
• Docket Number: No. 48001,48001
• Citation: 218 Kan. 758,545 P.2d 383
• Parties: STATE of Kansas, Appellee, v. Paul Richard LASSLEY, Appellant.
• Court: Kansas Supreme Court

Page 383

545 P.2d 383

218 Kan. 758

STATE of Kansas, Appellee, v. Paul Richard LASSLEY, Appellant.

No. 48001.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. In an appeal from a jury conviction of kidnapping (K.S.A. 21-3420), aggravated assault (K.S.A. 21-3410), and rape (K.S.A. 21-3502), the record is examined and it is held: (1) The trial court did not err in admitting in evidence the results of a polygraph examination when it was stipulated by the parties the results would be admissible and when it was shown the examiner was qualified and the test was conducted under proper conditions; (2) the trial court erred in failing to vacate the conviction on the charge of aggravated assault as being duplicitous of the crimes of kidnapping and rape; and (3) the trial court did not err in its instructions to the jury on intent.

David C. Burns, of Speir, Stroberg & Sizemore, Newton, argued the cause, and Michael S. Sizemore, Newton, was with him on the brief for appellant.

Ward P. Ferguson, of Weelborg, Embers & Ferguson, McPherson, argued the cause and was on the brief for appellee.

OWSLEY, Justice:

Defendant Paul Richard Lassley appeals from his conviction by jury of kidnapping (K.S.A. 21-3420), aggravated assault (K.S.A. 21-3410), and rape (K.S.A. 21-3502).

On the evening of April 25, 1973, the victim herein, a nineteen-year-old girl, was baby-sitting at a home in McPherson, Kansas. After having put the children to bed, she returned to the living room to study. At approximately 10:30 p. m. a man appeared in the doorway of the living room and demanded that she turn over the keys to her car. The intruder, later identified as defendant, was wearing a white cloth over his head and was holding a knife in one hand. She delivered the keys to defendant and he then ordered her outside, whereupon he grabbed her by the hair and pushed her down an alley. In an attempt to free herself, the victim swung at defendant and knocked the knife from his hand. A struggle ensued and the victim's hand was cut in grabbing the knife. Defendant quickly overpowered her and placed his knife across her throat, stating, 'That is your last move, don't try anything like that again.' The victim was subsequently taken to some nearby shrubs where she was raped. She notified the police and later positively identified defendant in a lineup conducted at the police station. He denied the charges brought against him and at trial relied principally upon the defense of alibi.

Defendant's first claim of error relates to the admissibility of the results of a polygraph examination. During the course of trial, defendant moved the court in the presence of the jury to order the chief of police to make arrangements for him to take a lie detector test prior to the completion of trial. Defendant explained that the request had not been made sooner because he was not aware a qualified polygraph operator could be obtained without charge. He informed the court that if he was permitted to take the test he would stipulate the results would be admissible in evidence. The trial court ordered the polygraph test to be administered. The results of the test implicated defendant and, in the opinion of the examiner, they indicated his answers to many of the questions were untruthful. Upon resumption of trial, the examiner testified in detail as to the operation of the machine, the manner in which the test was given, and the results. The state then offered the test results in evidence and no objection was raised.

Defendant does not deny he stipulated the lie detector test results would be admissible, but maintains it was error to admit them because his request for a polygraph examination was based upon erroneous knowledge as to its accuracy. He claims he was unaware of the numerous faults inherent in such a testing system. In State v. Lowry, 163 Kan. 622, 185 P.2d 147, we discussed the admissibility of polygraph test results in evidence. The question in that case arose when the trial court suggested both the defendant and complaining witness submit to lie detector tests. In compliance with the court's expressed desire the parties took the tests, but there was no stipulation or agreement that testimony might be admitted concerning the results of such tests. We held the subsequent admission of the results of the polygraph tests under these circumstances was reversible error. We stated:

'We are not ready to say that the lie detector has attained such scientific and psychological accuracy, nor its operators such sureness of interpretation of figures on a dial that the testimony here in question was competent, over objection, for submission to a jury holding the fate of the defendant in its hands. It must be remembered that we are not here considering a case where there was a prior agreement that the results of the test might be admitted in evidence. While the two men agreed to take the tests, there was no such stipulation. In fact, the witness Hoyt agreed upon cross-examination that in the conversation between counsel about taking the tests, the defendant's counsel stated that it 'wasn't for the purpose of placing before a jury.' . . .' (p. 628, 185 P.2d, p. 151.)

It is evident from the foregoing quote that our holding in Lowry was limited to the situation where there was no stipulation the test results would be admissible. In the absence of such an agreement, the results of a polygraph test are inadmissible in a criminal proceeding. (See also, State v. Hemminger, 210 Kan. 587, 502 P.2d 791; Holt v. State, 202 Kan. 759, 451 P.2d 221; State v. Lee, 197 Kan. 463, 419 P.2d 927.) This is in accord with the general rule followed by the great majority of jurisdictions. (29 Am.Jur.2d, Evidence, § 831, p. 923; 22A C.J.S. Criminal Law § 645(2), p. 525; State v. Ross, 7 Wash.App. 62, 497 P.2d 1343, 53 A.L.R.3d 997 (1972); Molino v. Board of Public Safety, 154 Conn. 368, 225 A.2d 805 (1966); The People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920 (1963); State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962); People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); State v. Pusch, 77 N.D. 860, 46 N.W.2d 508 (1950).)

A much different situation, however, is presented when the parties stipulate the results will be admissible in evidence. Despite the recognized flaws inherent in such a testing system, an accused cannot agree to the admissibility of such evidence, then object to its admission solely because of unfavorable results. We believe the better rule is to permit the introduction of the results of a polygraph examination upon the prior stipulation of the parties, after having satisfied the trial court that the examiner was qualified and the test was conducted under proper conditions. This is consistent with the holding in a growing number of cases which have considered the effect of a stipulation on the admission of polygraph tests. Proper weight is attached to the giving of a stipulation, but discretion is vested in the trial court to exclude the evidence if the test is not conducted fairly. (53 A.L.R.3d 1005, Polygraph-Stipulation of Admissibility; State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974); State v. Towns, 35 Ohio App.2d 237, 301 N.E.2d 700 (1973); State v. Freeland, 255 Iowa 1334, 125 N.W.2d 825 (1964); State v. Valdez, supra.)

In the instant case the trial court complied with the stated conditions for the admission of the polygraph test results. Defendant stipulated to the admissibility on at least three separate occasions. The examiner testified extensively, both on direct and on cross- examination, as to his qualifications and the operation of the machine. He further testified as to the questions he asked defendant and his opinion as to the truthfulness of defendant's answers. Under these circumstances the trial court did not err in admitting the results of the polygraph test.

Defendant next argues the charge of aggravated assault was duplicitous because the elements of that offense were not separate and distinct from the crimes of kidnapping and rape. The state answers defendant's contention by claiming there was a separate and...