Johnson v. State

Citation166 So.2d 798
Decision Date24 July 1964
Docket NumberNo. 4672,4672
PartiesLucius B. JOHNSON, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Paul Antinori, Jr., of Antinori & Cazin, Tampa, for appellant.

James W. Kynes, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

ALLEN, Acting Chief Judge.

Appellant, convicted of assault with intent to commit rape, challenges his conviction on two grounds, an alleged insufficiency of evidence and alleged error in the admission of certain testimony by a State's witness. We have examined the transcript of the proceedings below and conclude that the first challenge to the judgment is without merit: the lower court did not err in submitting the cause to the jury and the record reveals evidence sufficient to justify the jury's verdict and the consequent conviction.

The second challenge to the conviction, based upon alleged error in the admission of testimony by a prosecution witness, arises from circumstances wherein, after adducing evidence as to the facts of the incident giving rise to prosecution and the fact of appellant's arrest, the State called one David F. Allison to the stand. After indicating his name, address and the fact that he recognized the defendant-appellant, Allison was asked if he had conversed with the defendant on a certain date subsequent to the alleged assault. The attorney for defendant-appellant who incidentally was counsel not associated with the firm now representing appellant, objected to the last inquiry and, after establishing that Allison had no official police capacity, grounded his objection on Allison's not being a representative of a governmental law enforcement agency. This objection was overruled, Allison answered affirmatively and the inquiry turned to the substance of the conversation.

In response to questions by the prosecution, Allison indicated that he was referring to notes of his conversation with appellant, including 'direct quotes,' which notes, he added, were used in making his 'final report.' Asked what appellant had said, Allison responded 'Originally * * * [the defendant-appellant] stated that he had told the full and entire truth.' Again, the defense objected, the jury was withdrawn and, through colloquy between the court, the attorneys and the witness, it was revealed that Allison was a polygraph or 'lie detector' operator. The defense argued that by reason of this fact his testimony would be prejudicial and inadmissible. The following excerpt from the transcript, made while the jury was out, summarizes the dispute and its resolution.

'MR. STAGG [for the prosecution]:

Now, we propose to offer simply what this man told Mr. Allison, Judge, which would be in the nature of admissions. But we do not propose to go into the results of the lie detector test, even though that is what he does, or even that one was given, or even that he owns a lie detector machine. Only what was said as a conversation between them. We have a number of cases that we can cite to the Court if there is any question of the admissibility of confessions made.

'THE COURT: All right. Mr. Menas, what is your objection?

'MR. MENAS [for the defense]: My objection will be in this form. To allow Mr. Allison to testify at this time will allow the State to do something indirectly which they cannot do directly, to-wit, to introduce the lie detector test, or testimony. It would be the same thing. It would be just as damaging as the evidence of the lie detector test itself.

'Now, that's my objection, your Honor please. I vigorously object to it.

'THE COURT: All right. Now, the objection will be overruled but I want it clear that the testimony of this witness will be confined to exactly what you stated that you intend to offer by the witness.'

The jury was brought in and Allison, testifying as to his conversation with appellant, said:

'A. It was with reference to information regarding an incident that occurred, allegdly, near the Hillsborough River, two days before, on April 4th at about three o'clock in the afternoon, approximately. In talking with Mr. Johnson, he denied any knowledge of it, whatsoever. He denied being in that vicinity at all on that date and, particularly, at that time. When I told him that I did not believe him, which I did, he, in turn, stated that he could not admit anything, that if he did admit anything he would lose his church papers. * * *

* * *

* * *

'A. [We] continued our conversation and in a short while, Mr. Johnson admitted that he had not told me the truth.'

Continuing, Allison testified to further conversation in which appellant admitted his presence at the scene of the incident but gave an exculpatory explanation of the events that ensued.

On cross-examination and in direct response to defense counsel's questions, Allison testified that his conversation with appellant eventuated from a police request that he administer a polygraph examination. However, although the defense introduced this fact to the jury, the court subsequently foreclosed any further exploration of the subject of a polygraph examination by the State on redirect examination.

The appellant now urges that since he subsequently testified in the case, denying the assault, his credibility was a vital issue and that 'if the jury were allowed to hear directly or by implication the results of a polygraph test, then such testimony, being inadmissible, was prejudicial, harmful and reversible error.' Appellant argues that the fact that Allison testified from notes he said were used in 'making a final report' and the fact that though not a police official he nonetheless questioned the witness, coupled with Allison's allusions to 'believing' the defendant and to the discussion of 'truth' with defendant, all served to indicate to the jury that Allison was a 'lie detector expert.' He concludes that Allison testifying for the State indirectly and implicitly conveyed an impression of an adverse polygraph examination of appellant. Appellant's counsel on appeal discreetly avoids mentioning that if the jury hadn't concluded that Allison was a polygraph operator, appellant's trial counsel made it clear to them.

Upon consideration of appellant's arguments and of the circumstances surrounding the direct examination of the witness Allison, we conclude, for reasons hereinafter discussed, that the court did not err in permitting Allison to testify.

Initially we cannot agree that the jury must have known Allison was a polygraph operator prior to the disclosure of this fact by the defense. The substance of his testimony with respect to the conversation with appellant, including the testimony of appellant's initial assertion of veracity, Allison's challenging this and appellant's retreat and eventual contradictory admissions do, we agree, indicate that Allison was interested in arriving at truth, but this is an interest not unique to a polygraph examiner. In any interrogation or conversation relative to an alleged crime, the participants are presumably seeking to estblish the truth as to circumstances. The additional disclosures that Allison was refreshing his recollection from notes he used in making a report to unisclosed persons and that Allison was not a police or prosecution official, (the latter fact having been disclosed at defendant's insistence) do not alone or in connection with his testimony impel nor justify the conclusion that the witness was a polygraph operator. Indeed, the record, in our view, demonstrates scrupulous care on the State's part to prevent the jury's reaching the conclusion appellant urges they must have reached.

However, even were we to conclude that the jury did or reasonably could have realized that Allison was a polygraph operator on the basis of the State's examination, this would not impel the conclusion that his testimony was inadmissible. The established rule that neither the result of a polygraph examination nor any allusion to such an examination to imply a certain result is admissible or proper, Kaminski v. State, Fla.1953, 63 So.2d 339, does not, in our view, label the polygraph a tree whose every fruit is forbidden.

In Florida, and in every other jurisdiction in the United States that has considered the question, the results of so-called lie detector examinations are generally not admissible as evidence and should be excluded upon objection of any party. Kaminski v. State, supra; Annot. 23 A.L.R. 1306 (1952) and supplements. However, Justice Udall, in a logical and comprehensive opinion for the Arizona Supreme Court in State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962), enunciates the view that the results of an examination can be admitted, at the trial judge's discretion and upon proper instruction to the jury, when the parties stipulate to the admission.

As a consequence of the bar to direct proof of veracity by introduction of lie detector results, attempts were made to accomplish the prohibited end by indirection. These attempts gave rise to a derivative prohibition against inquiry as to the willingness or reluctance of a party or witness to be the subject of a lie detector examination. Courts which considered this issue almost universally determined that a witness' veracity could not be bolstered nor discredited by proof of his taking or refusing a lie detector test and that evidence of a defendant's willingness or reluctance to be examined was inadmissible to prove consciousness of innocence or of guilt. People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957); Mills v. People, 139 Colo. 397, 339 P.2d 998 (1959); State v. Emory, 190 Kan. 406, 375 P.2d 585 (1962); State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952); Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956); State v. Britt, 235 S.C. 395, 111 S.E.2d 669 (1959).

An early decision on this issue was found in the opinion of Florida's Supreme Court in Kaminski v. State, su...

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