State v. Shively, 77,100.

Decision Date10 March 2000
Docket NumberNo. 77,100.,77,100.
PartiesSTATE OF KANSAS, Appellant, v. STEPHEN MEDFORD SHIVELY, Appellee.
CourtKansas Supreme Court

Tony W. Rues, assistant district attorney, argued the cause, and Joel W. Meinecke, assistant district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellant.

Craig H. Durham, assistant appellate defender, argued the cause, and Michael J. Helvey, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

Following the trial, conviction, and sentencing of Stephen Medford Shively, the State appealed on questions reserved relating to a finding of indirect contempt against District Attorney Joan Hamilton and trial rulings regarding polygraph evidence.

Stephen Medford Shively was tried in April 1996 for intentional second-degree murder, aggravated assault on a law enforcement officer, and several drug-related charges. The charges arose from events occurring in October 1995 when Shively shot and killed Topeka Police Officer Tony Patterson during a night-time drug raid at Shively's home. Shively asserted the affirmative defense of defense of dwelling, and the trial court permitted polygraph evidence to be admitted on that issue. Shively was acquitted of murder but was found guilty of aggravated assault and of all the drug charges.

The Court of Appeals affirmed all of Shively's convictions in State v. Shively, 26 Kan. App.2d 302, 987 P.2d 1119 (1999), and we granted Shively's petition for review in that case (No. 78,380) on the single issue of "no knock search warrants." In a separate opinion filed this day, we have affirmed the Court of Appeals.

We consider the State's three contentions in the order raised.

The Trial Court's Finding of Indirect Contempt

The first issue is whether the trial court correctly found District Attorney Joan Hamilton in indirect contempt of court under K.S.A. 20-1204a based on a letter she wrote to the editor of the Topeka Capital-Journal which was later published in that paper. In dealing with appeals by the State under K.S.A. 22-3602(b)(3), we have said:

"The purpose of permitting the State to appeal a question reserved is to allow the prosecution to obtain review of an adverse legal ruling on an issue of statewide interest important to the correct and uniform administration of the criminal law which otherwise would not be subject to appellate review." State v. Schulze, 267 Kan. 749, Syl. ¶ 1, 985 P.2d 1169 (1999).

We decline to exercise jurisdiction over the State's appeal of the trial court's ruling of contempt as a question reserved. This is not a matter which "otherwise would not be subject to appellate review." A trial court's judgment of contempt is reviewable under K.S.A. 20-1205, which provides that an appeal may be taken from any judgment of conviction for contempt in the same manner as is provided by law in civil cases. When a defendant attempted to raise refusal to cite police officers for contempt as an issue on appeal in State v. Eldridge, 197 Kan. 694, 703, 421 P.2d 170 (1966), cert. denied 389 U.S. 991 (1967), we held any review of such proceedings was limited by K.S.A. 20-1205 and could not be a specification of error in a criminal appeal. The same principle is applicable to the State's attempt here.

Additionally, appeals on questions reserved are not accepted merely to demonstrate error by the trial court, but are reserved for matters "of statewide interest important to the correct and uniform administration of the criminal law." State v. Schulze, 267 Kan. 749, Syl. ¶ 1, 985 P.2d 1169 (1999). The State's arguments that the contempt ruling is procedurally flawed and incorrect on the merits fail to meet the above criterion. There is abundant case law regarding the procedural requirements for indirect contempt, see, e.g., In re Seelke, 235 Kan. 468, 471, 680 P.2d 288 (1984)

; Johnson v. Johnson, 11 Kan. App.2d 317, 319-320, 721 P.2d 290 (1986); see also State v. Holland, 236 Kan. 840, 696 P.2d 401 (1985) (declining jurisdiction where resolution of issue would merely succeed in repeating the principles set forth in earlier cases), and a review of the merits of the contempt ruling would entail a fact-specific analysis not appropriate for review as a question reserved. See State v. Chittenden, 212 Kan. 178, 510 P.2d 152 (1973).

We decline to consider the contempt ruling.

The Admission of Shively's Polygraph Evidence at Trial

The State argues that Shively's polygraph evidence was improperly admitted at trial. The trial court ruled that the polygraph technology presented in this case was sufficiently reliable and accepted within the scientific community to pass the test for admissibility enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Shively's arguments focused on the computerized scoring of his polygraph exam and claimed advances in polygraph technology. Although the rule denying admission of polygraph evidence is well established in Kansas and has been restated as recently as April 1999 in State v. Wakefield, 267 Kan. 116, 133, 977 P.2d 941 (1999), we address the claim that recent advances in computerized polygraph technology now make such evidence admissible.

Standard of Review

The general acceptance test of Frye governs the admissibility of expert scientific evidence in Kansas in those situations wherein such a test or standard is required. State v. Isley, 262 Kan. 281, Syl. ¶ 1, 936 P.2d 275 (1997). As explained in State v. Warden, 257 Kan. 94, 108, 891 P.2d 1074 (1995):

"The general rule enunciated in Frye prohibits expert testimony concerning a scientific principle or discovery unless the principle is `sufficiently established to have gained general acceptance in the particular field in which it belongs.' Frye, 293 F. at 1014. This court has adopted the Frye test concerning the admissibility of scientific evidence. See State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992); State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947).
"`The Frye test requires that, before expert scientific opinion may be received in evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. If a new scientific technique's validity generally has not been accepted as reliable or is only regarded as an experimental technique, then expert testimony based on its results should not be admitted into evidence.' Witte, 251 Kan. 313, Syl. ¶ 3."

The party seeking to admit the scientific evidence has the burden of satisfying the Frye test by proving the reliability of the underlying scientific theory upon which the evidence is based and the acceptance of it in the appropriate scientific field. See State v. Canaan, 265 Kan. 835, 848-49, 964 P.2d 681 (1998); Warden, 257 Kan. at 108.

Although an abuse of discretion standard of review generally governs the admissibility of evidence, including expert testimony, State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999); Simon v. Simon, 260 Kan. 731, Syl. ¶ 1, 924 P.2d 1255 (1996), we review a trial court's Frye ruling de novo because the outcome of a Frye holding transcends individual cases such that applying less than a de novo standard could lead to inconsistent treatment of similarly situated claims. See State v. Tankersley, 191 Ariz. 359, 365, 956 P.2d 486 (1998); Williams v. State, 710 So.2d 24, 32 n.13 (Fla. Dist. App. 1998); Smith v. Belle Bonfils Mem. Blood Center, 976 P.2d 344, 346 (Colo. App. 1998) (noting trial court's discretion in ruling on admissibility of evidence but stating that whether general acceptance exists under Frye is a question of law subject to de novo review); Commonwealth v. Vao Sok, 425 Mass. 787, 797, 683 N.E.2d 671 (1997) (applying de novo standard to Frye aspect of Massachusetts' unique test for admissibility).

The Polygraph Evidence and Ruling in this Case

Key to Shively's defense to the charge of second-degree murder was his claim of defense of his dwelling. The police attempted to enter Shively's home for a surprise drug raid at around 3 a.m. by battering down two doors to the front entrance of his residence. Shively testified that he was awakened by the noise and ran with gun in hand toward the front foyer to investigate. Through a broken panel in the door he saw shadowy figures trying to break in, at which time he fired his gun in the general direction of these individuals, killing Officer Patterson. It was the State's contention that Shively knew it was the police when he fired his weapon. Officer McKinley testified that he yelled, "Police, search warrant," during a pause in the battering of the second door and before Shively fired. Shively claimed he did not hear the police declare their identity and did not know it was the police when he fired his weapon.

Shively took a polygraph examination regarding whether he knew it was the police when he fired his weapon, and he sought to introduce the results, initially for purposes of bond reduction, then for the preliminary hearing, and later, at trial. The State objected to admission of the polygraph evidence, claiming it was inadmissible under the Frye test absent a stipulation by the parties and that it constituted hearsay testimony. The defense argued that the Kansas appellate courts had not considered a proffer of polygraph reliability evidence for many years and that such evidence derived from 1995 technology would be admissible under Frye.

The trial court refused to admit the polygraph evidence for the bond and preliminary hearings but permitted the defense to make a proffer which included: the testimony of polygraph examiner Gary Davis; the written declaration of polygraph expert and proponent David C. Raskin, Ph.D. (hereinafter Raskin Declaration); a copy of a study entitled "A Study of the Validity of Polygraph Examinations in Criminal Investigation,...

To continue reading

Request your trial
16 cases
  • State v. White
    • United States
    • Court of Appeals of Kansas
    • 6 Agosto 2021
    ...has consistently reaffirmed that absent a stipulation, the results of a polygraph examination are inadmissible. See State v. Shively , 268 Kan. 573, 579, 999 P.2d 952 (2000) ; State v. Wise , 237 Kan. 117, 124, 697 P.2d 1295 (1985). The rationale for inadmissibility is twofold:"[F]irst, pol......
  • State v. Engelhardt
    • United States
    • United States State Supreme Court of Kansas
    • 16 Septiembre 2005
    ...to the unreliability of polygraph methodology and in part to protection of the jury's role as the factfinder. See State v. Shively, 268 Kan. 573, 579-80, 999 P.2d 952 (2000). The parties did not stipulate to the introduction of the results of Brian's polygraph test in this Engelhardt conten......
  • In re Care and Treatment of Foster
    • United States
    • United States State Supreme Court of Kansas
    • 3 Febrero 2006
    ...Kansas, absent stipulation by the parties, the results of a polygraph test are inadmissible in criminal proceedings. State v. Shively, 268 Kan. 573, 579, 999 P.2d 952 (2000). We have additionally held inadmissible the fact that an examination taken, or, absent a stipulation, an offer was ma......
  • Wilkins v. State
    • United States
    • United States State Supreme Court of Kansas
    • 22 Agosto 2008
    ...of Gray's polygraph examinations, they would not have been admissible in Wilkins' trial absent a stipulation. See State v. Shively, 268 Kan. 573, 579, 999 P.2d 952 (2000). Generally, neither would the fact that the examinations had been administered. See State v. Webber, 260 Kan. 263, 276, ......
  • Request a trial to view additional results
1 books & journal articles
  • Navigating expert reliability: are criminal standards of certainty being left on the dock?
    • United States
    • Albany Law Review Vol. 64 No. 1, September 2000
    • 22 Septiembre 2000
    ...(Wash. Ct. App. 1999) (finding that earprint identification evidence was wrongly admitted in a murder trial). (184) See State v. Shively, 999 P.2d 952, 962 (Kan. 2000) (finding no error in the trial court's rejection of defendant's polygraph test results in an aggravated assault case); Chri......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT