Brown v. State

• Decision Date: 08 June 1993
• Docket Number: No. A93A0804,A93A0804
• Citation: 433 S.E.2d 321,209 Ga.App. 314
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 321

433 S.E.2d 321

209 Ga.App. 314

BROWN v. The STATE.

No. A93A0804.

Court of Appeals of Georgia.

June 8, 1993.

Reconsideration Denied July 1, 1993.

Certiorari Denied Feb. 18, 1994.

Little & Adams, Sam F. Little, Dalton, for appellant.

Jack O. Partain III, Dist. Atty., Bert M. Poston, Jr., Asst. Dist. Atty., for appellee.

BEASLEY, Presiding Judge.

Brown appeals from the judgments of conviction and sentences entered for two counts of child molestation, OCGA § 16-6-4(a), and from the denial of his motion for new trial and extraordinary motion for new trial.

1. Appellant contends that the trial court erred in denying his motion in limine and admitting testimony concerning the results of a State-conducted polygraph examination.

Appellant's daughter, age 13, disclosed to a girl friend that appellant had been sexually molesting her for several years. The friend's mother reported the conduct to the Department of Family & Children Services. As a result, a DFACS caseworker and an investigator with the sheriff's department interviewed the victim at her home on August 13, 1991. She revealed being sexually molested by her father on numerous occasions, beginning when she was seven or eight years old.

Later that day, appellant and his wife were telephoned by the investigator and the DFACS caseworker. They agreed to come to the investigator's office where appellant was interviewed by the investigator concerning his daughter's complaint. Appellant denied the allegations and agreed to take a polygraph examination. The investigator presented him with a form captioned "stipulation for admissibility of polygraph examination results," which stated that appellant is under investigation for child molestation and requests a polygraph examination concerning the allegations, to be administered by an authorized State examiner. The document further provided: "[Appellant] hereby stipulates his consent for the admission of the results of the polygraph examination in evidence at any legal proceeding including trial that may arise out of the aforementioned investigation. The District Attorney hereby stipulates on behalf of the State his consent for the admission of the results of said polygraph into evidence at any legal proceeding against [appellant] that may arise out of this investigation. [Appellant] further stipulates that if he should refuse to take the agreed upon polygraph examination subsequent to this stipulation, such refusal shall also be admissible into evidence." The investigator testified that he explained the contents of the document and advised appellant that the results were not admissible in court unless he signed the stipulation. Appellant acknowledged that he understood the document and signed it without promise or threat by the investigator. The examination was administered two days later and appellant was thereafter arrested.

The examiner was qualified as an expert at trial and testified concerning the testing procedure. Four relevant questions were posed pertaining to the present charges. The examiner testified that the subject was being deceptive when he gave "no" answers to those questions. The examiner was thoroughly cross-examined as to the accuracy of the test. Appellant testified, denying the charges.

Appellant had filed a pre-trial motion in limine seeking to exclude the results of the polygraph examination. A hearing was conducted, but no transcript has been provided nor is available for this court's review.

Appellant contends in the motion and on appeal that the polygraph results should have been excluded because he was inadequately informed concerning the lack of reliability of the test and was unrepresented by counsel when the stipulation was obtained and the test administered.

"[U]pon an express stipulation of the parties that they shall be admissible, the results of a lie detector test shall be admissible as evidence for the jury to attach to them whatever probative value they may find them to have." State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977). The undisputed evidence shows the investigating officer explained the terms of the stipulation to appellant who "said he understood and signed the form ... freely and voluntarily." He was told the results were not admissible at trial unless he signed the stipulation. The contents of the form clearly provide that appellant "stipulates his consent for admission of the results in evidence at any legal proceeding including trial...."

Nor is the stipulation invalid because it was executed without advice of co...