Jones v. Com.

• Citation: 204 S.E.2d 247,214 Va. 723
• Parties: Samuel JONES v. COMMONWEALTH of Virginia.
• Decision Date: 22 April 1974
• Court: Supreme Court of Virginia

Page 247

204 S.E.2d 247

214 Va. 723

Samuel JONES v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

April 22, 1974.

Robert G. Cabell, Jr., Richmond (White, Cabell, Paris & Lowenstein, Richmond, on brief), for plaintiff in error.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARRISON Justice.

Samuel Jones was convicted of robbery. He appealed the final judgment of the lower court imposing sentence and assigned numerous errors including the sufficiency of the evidence to convict. We granted him a writ of error limited to a consideration of whether the trial court erred in permitting Fausto Molinet to testify that defendant admitted his guilt of the robbery during a conversation they had preliminary to a polygraph test.

Defendant was indicted for the armed robbery of the Ampthill Drug Store in Richmond. Prior to his trial he was held in jail in lieu of a $50,000 bond. Defendant was also suspected of being involved in the commission of other offenses. At the suggestion of his attorney, Jones employed the Burns International Security Services to administer a polygraph test to him. Counsel hoped that if defendant passed the test the amount of his bail would be reduced. On July 10, 1972, Richmond detectives Harry Duke and L. B. Adams escorted Jones to the office of Fausto Molinet, a polygraph expert associated with Burns Services. At the time and place of the testing counsel for Jones was present, and he and the two detectives remained in a room where, without the knowledge of Jones, they could hear and observe the test being administered. The defendant was taken by Molinet into a small room which was equipped with the polygraph instruments. Prior to making any actual polygraph reading Molinet apparently follows a routine with those to whom the test is to be administered. Molinet is a Cuban by birth, and said that he told Jones this to remove any suspicion of racial prejudice. He told the defendant that he did not like a certain police officer and referred to Detective Duke in a derogatory manner. He also advised the defendant that under the Fifth Amendment to the Constitution of the United States Jones did not have to answer any question; that Jones did not have to take the polygraph examination; and that if he would tell him 'which of the places he had robbed he would not ask him about those places on the polygraph test'. Molinet testified that after they had talked for a few minutes Jones told him that he had robbed the Ampthill Drug Store and that he had gotten approximately $449. Molinet then gave Jones a olygraph test.

Upon the trial of the case before the jury, the lower court ruled that the admission by Jones to Molinet was admissible. However, the court limited the Commonwealth to showing just the bare oral admission itself, eliminating all results of the polygraph test. Specifically, the testimony elicited by the Commonwealth from Molinet before the jury consisted of Molinet testifying that he was employed as a polygraph examiner with Burns Services and in that capacity saw Jones; that he insructed the defendant as to the Fifth Amendment to the Constitution of the United States; that he explained to defendant how the polygraph worked and that he would like to help him; that he would not ask Jones questions with reference to any place that he had robbed; that prior to administering the test he asked Jones if he had robbed the Ampthill Drug Store; and that Jones admitted that he had committed the robbery and he had gotten approximately $449.

Molinet was cross-examined by counsel for Jones and reiterated much of what he said on direct examination.

The sole question in the instant case is whether an admission of guilt by a defendant, made to a polygraph expert prior to the defendant's taking a polygraph test, is admissible into evidence. Under our holding in Lee v. Commonwealth, 200 Va. 233, 105 S.E.2d 152 (1958), the results of a polygraph test are not admissible, and in Barber v. Commonwealth, 206 Va. 241, 142 S.E.2d 484 (1965), we held inadmissible evidence that the defendant was unwilling to submit to a lie detector test. We are not concerned here with whether the results of the polygraph test were admissible for the trial court excluded all evidence dealing with the actual olygraph test that was administered to Jones. Further, it is admitted that the test was made at his request. What we are concerned with are the circumstances surrounding the admission of guilt by Jones and the reliability of that admission.

The evidence in this case is conclusive that it was Jones and his counsel who initiated the request for the test. They desired that it be administered hoping that a successful test would result in a reduction in defendant's bail. The Commonwealth neither encouraged nor discouraged the test. While the police officers accompanied defendant to Molinet's office, this was necessary for security reasons and because he was in custody. What occurred in Molinet's office was not 'staged' by the...