State v. Stafford
| Decision Date | 15 July 1994 |
| Docket Number | No. 69821,69821 |
| Citation | 255 Kan. 807,878 P.2d 820 |
| Court | Kansas Supreme Court |
| Parties | STATE of Kansas, Appellee, v. Lawrence C. STAFFORD, Appellant. |
Syllabus by the Court
1. The presence or absence of an incentive to falsify or distort under K.S.A.1993 Supp. 60-460(d)(3) is a question to be determined by the trial judge in light of all the circumstances.
2. When an unfavorable ruling on an evidentiary question is received prior to trial, a party must make a timely objection to such evidence when introduced at trial in order to preserve the issue for appeal.
3. In cases of necessity, it is generally held that the right of confrontation under the Sixth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights is satisfied if the accused has been once confronted by the witness against the accused in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination.
4. A witness is unavailable if he or she is unable to be present or to testify at the hearing because of a then-existing physical or mental illness.
5. The sufficiency of proof of unavailability of a witness is a question for the trial court within its discretion, and its ruling will not be disturbed unless an abuse of discretion is shown.
6. An admonition to the jury to disregard evidence normally cures prejudice resulting from the improper submission of that evidence.
7. The criteria set forth in K.S.A. 1993 Supp. 21-4606 are to be considered by the court both in imposing a sentence and in determining whether sentences should be served consecutively or concurrently. Nothing limits the use of the same factors both in imposing sentence and in making that sentence consecutive to another. The fact that one of the factors considered by the jury in recommending the hard 40 sentence was also one of the factors considered by the court in imposing consecutive sentences does not constitute an abuse of discretion in imposing consecutive sentences.
8. The provision in K.S.A. 22-3412(3) for replacing a juror is not limited to juries determining guilt; that statute also applies to a jury determining whether to recommend the hard 40 sentence. Likewise, case law concerning substitution of a juror during the guilt determination phase applies to substitution of a juror during the hard 40 determination phase.
9. After replacing a juror, the trial court should instruct the jury to begin its deliberations anew.
10. The decision to discharge a juror and substitute an alternate juror lies within the sound discretion of the trial court. The defendant has a burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. Dismissing one juror and replacing that juror with an alternate is not an abuse of discretion where reasonable cause exists.
11. In the hard 40 sentencing context, a hung jury is not an undecided jury. By statute (K.S.A. 1993 Supp. 21-4624, a hung jury results in a sentence of imprisonment for life with eligibility for parole. Thus, to replace a juror who may cause a jury to be unable to reach a unanimous vote concerning imposition of the hard 40 sentence is to deprive the defendant of a verdict. Our prior cases holding that a possible hung jury is insufficient to show prejudice are not applicable to hard 40 proceedings. The trial court cannot replace a juror during hard 40 sentencing deliberations unless it has reasonable cause and makes findings of a valid legal reason to excuse the juror. The juror's reluctance to recommend the hard 40 sentence is not a valid legal reason.
Stephen R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.
David B. Debenham, Asst. Dist. Atty., argued the cause, and Joan M. Hamilton, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.
This is a direct appeal by Lawrence C. Stafford from his convictions and sentencing for two counts of first-degree murder, one count of aggravated burglary, and one count of unlawful possession of a firearm. He was sentenced to consecutive life sentences without the possibility of parole for 40 years for the murder offenses. The other sentences were to run concurrently with each other and with the murder sentences.
The defendant raises several evidentiary issues and claims the trial court erred in replacing a juror during the sentencing phase of the trial and in imposing consecutive hard 40 sentences.
Stafford had a three-year relationship with one of the victims, Mary Workman. On January 5, 1992, someone broke into Workman's home and shot and killed her and a male friend, John King. Entry appeared to have been through a basement window, and Stafford's fingerprints were found on both the interior and exterior basement window. Stafford had conveyed to a number of people his intention to kill Workman and King and at one time he was charged with illegally entering King's apartment after he was found hiding behind the refrigerator with a loaded shotgun in October 1991.
This is not a fact-driven case; facts will be added as necessary in discussing the issues.
At trial, Roy Danks, the Emergency Medical Technician who treated King at a neighbor's house where King had gone seeking help after he was shot, testified that King told him Stafford had shot both King and King's girlfriend. Danks admitted that he never heard King say that King "saw" Stafford shoot him and his girlfriend. The neighbor testified that when he discovered King on his back porch, King said that he and his girlfriend had been shot, and when the neighbor asked who shot him, King replied, "Larry Stafford."
The admissibility of Danks' testimony concerning what King told him was determined prior to trial. The State sought to admit the testimony under K.S.A.1993 Supp. 60-460(d)(2) or (3). Stafford responded with a motion to suppress the statements King made to Danks. A hearing on both motions was held immediately before trial, and the trial court ruled that the statements were admissible pursuant to K.S.A.1993 Supp. 60-460(d)(3).
This court has recognized that
State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365 (1983).
Stafford contends admitting the statements was error. He argues there was no evidence that King claimed to have actually perceived or observed Stafford commit the shootings. Further, Stafford argues there was no evidence that King's statements were made without an incentive to falsify or distort. He suggests that because King was involved in a romantic triangle with Stafford and Mary Workman, because there was evidence that Stafford had on an earlier occasion broken into King's house, and because there was evidence that Stafford had made threats against King and Workman, King could have assumed that Stafford committed the shootings without actually having seen Stafford.
Stafford failed to object at trial to the testimony of Danks that King told him Stafford shot King and King's girlfriend, although he did object prior to trial. When an unfavorable ruling on an evidentiary question is received prior to trial, a party must make a timely objection to such evidence when introduced at trial in order to preserve the issue for appeal. See State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993); State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 (1991); State v. Nunn, 244 Kan. 207, Syl. p 5, 768 P.2d 268 (1989). Moreover, Stafford did not object, either before or during trial, to the admissibility of King's statements through the testimony of Workman's neighbor. Stafford's failure to timely object at trial to the testimony concerning statements King made about who shot him and his girlfriend precludes Stafford from raising this issue on appeal. In any event, consideration of the merits of this issue reveals no error.
Stafford argued to the trial court that King did not perceive Stafford commit the shootings. The trial court did not comment on this argument. Stafford points out on appeal that both witnesses testified that King did not say he actually saw Stafford commit the shootings. However, it is clear that King perceived the shootings. After he was shot, King was mobile and was able to transport himself to two houses seeking help. King was aware that he had been shot three times and that Workman had also been shot. The testimony was that King was alert when paramedics began treating him. It is reasonable that, when asked who shot him, King would merely reply with a name rather than include an indication that he actually saw the person shoot him. King's failure to affirmatively indicate he saw Stafford shoot him does not affect the fact that the statements were made after King perceived, and was himself a victim of, the shooting.
Stafford also asserts that King's...
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