McLemore v. State

• Citation: 87 Wis.2d 739,275 N.W.2d 692
• Decision Date: 27 February 1979
• Docket Number: No. 76-752-CR,76-752-CR
• Parties: John Wesley McLEMORE, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: United States State Supreme Court of Wisconsin

Page 692

275 N.W.2d 692

87 Wis.2d 739

John Wesley McLEMORE, Jr., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-752-CR.

Supreme Court of Wisconsin.

Argued Nov. 29, 1978.

Decided Feb. 27, 1979.

Barbara B. Berman, Asst. State Public Defender (argued), with whom on the briefs was Howard B. Eisenberg, State Public Defender, for plaintiff in error.

Marguerite M. Moeller, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant in error.

DAY, Justice.

Plaintiff in error, John Wesley McLemore, Jr., (hereafter defendant) brings writs of error to review the judgment entered by the Circuit Court, Branch II, Milwaukee County, the Honorable Christ T. Seraphim, presiding, convicting defendant of one count of armed robbery, contrary to sec. 943.32(1)(b) and (2), Stats., (1973) following a jury trial and to review the order entered September 21, 1976 denying defendant's motion for a new trial.

A criminal complaint was filed against the defendant on January 25, 1974. The defendant's first trial ended in a mistrial on May 20, 1975 when the jury reported that it was hopelessly deadlocked. The defendant was convicted as a result of a second jury trial held in February 1976. The defendant was sentenced to an indeterminate term of not more than seven years in the Wisconsin State Prison.

The principal issues before us are:

1. Was the defendant denied the right to cross-examination, impeachment, and the right to call witnesses in his own behalf when the trial court refused to allow him to call his own polygraph experts to testify as to procedures used by the state's polygraph examiner?

2. Was the defendant denied due process of law because the state refused to produce a transcript of an American Polygraph Association hearing of charges against the state's polygraph examiner?

3. Was the defendant denied the right to remain silent when the prosecutor cross-examined him as to when and to whom the defendant first reported his alibi?

At trial, the state's first witness against the defendant was James Maben who testified that on January 14, 1974, he and his cousin, Jerry Brown, were working at a Clark gasoline station at Ninth and Center Street in the City of Milwaukee. At about 9:15 p. m., a man walked onto the lot. The man, who Maben identified as the defendant, entered the station, shoved a silver looking gun into his ribs and said, "Give me the money." Maben testified that Jerry Brown threw his money on the table, and that he personally gave the defendant $150. About a week later, Maben picked out the defendant's picture at police headquarters as the man who had robbed him. On March 27, 1974, he identified the defendant in a lineup. Maben testified that he was discharged from the Marines because of a bad left eye. Maben admitted that he did not always wear his glasses. However, at the first trial which ended in a hung jury, Maben testified that he was wearing his glasses at the time of the robbery.

On cross-examination, Maben could not recall his former testimony that he gave the robber approximately $30. nor could he remember telling the police after the robbery, that the total amount taken from him and his cousin was $70. or $80. He denied telling the patrolmen that the gun was a twenty-two caliber, blue revolver. He recalled his description to the police of the robber as a black male, with a mustache, short-cut "Afro" hairstyle, wearing a black leather jacket, and green trousers. He could not remember if he told the police that the robber had a scar or a gold tooth. At the first trial, Maben testified that he did not notice any scars, facial marks, or gold teeth. The record shows that the defendant had a prominent facial scar and a gold tooth in the front of his mouth. The defendant and other witnesses testified that his hair was chemically straightened at the time of the robbery.

Jerry Brown also testified for the state. He testified that he picked out a photograph of the defendant at the police department, but he "wasn't sure that this was the man, but he looked just like the man." He stated that he did not get a good enough look at the robber to identify him. Brown stated that he picked the defendant out of a lineup. Brown admitted to meeting the defendant at the Cobra Club a few days before the trial. At first, Brown testified that defendant had approached him, but then he stated that the conversation was as follows:

"Well well, like at first at first, he said, 'Man, you know I didn't rob you. You know I didn't rob you.' I said, 'I don't know that.' I said, 'Like I said, I am not positive if you not the man or what.' I said, 'I am just going, you know, tell it the way I have been telling it,' and he said, 'What about your cousin? What about your cousin?' I said, 'Well, if you make it sweet, I probably could talk to him.' I was just saying it. I hadn't saw James in what two, three weeks."

While Brown denied discussing money in return for a change in testimony, he admitted that he would have taken $50. from the defendant.

The state called the polygraph examiner to the stand. Out of the presence of the jury, the court permitted examination as to the qualification of the polygraph examiner, Robert Anderson. The defendant had taken a polygraph examination, pursuant to a stipulation between his then attorney, Jack Gimbel and the assistant district attorney. It appears that through inadvertence Mr. Gimbel did not sign the stipulation. However, the defendant concedes that this omission was inadvertent, and the issue is not raised on appeal.

Anderson testified that he is a polygraph examiner at the State Crime Laboratory and that he has been a polygraph examiner since 1968 when he finished the federal school at Augusta, Georgia. Before his present job, Mr. Anderson testified that he had conducted more than 800 polygraph examinations while he was in the Army. He added, that he had no way of knowing how many of these examinations resulted in the actual taking of the polygram. He testified that he had conducted more than 600 polygraph tests at the State Crime Laboratory. He stated that he was a member of the American Polygraph Association (APA), The Wisconsin Polygraph Association, and the Wisconsin Law Enforcement Association.

Anderson stated he was placed on probation status with the APA, following a hearing on charges brought against him. He stated that because of his role in the Mendoza trial (see State v. Mendoza, 80 Wis.2d 122, 258 N.W.2d 260 (1977)), Robert Brisentine of the American Polygraph Association filed charges against him. Brisentine alleged at the APA hearing that Anderson had misinterpreted the charts in the Mendoza case, that the procedure Anderson used for arriving at his conclusions was contrary to any recognized teaching of an APA accredited school, and that the procedure used by Anderson was not taught by the Army. He was still on APA probation at the time of this trial.

At the beginning of the trial, defense counsel asked for a copy of the APA transcript. The Assistant District Attorney refused, saying that the transcript was not within the custody and control of the state, and that the defense could obtain a copy as easily as the state. Mr. Anderson was provided counsel by the state at the APA proceedings, and testified that he believed that the State Crime Laboratory had a copy of the transcript. Anderson said that the APA had not prepared an official transcript of its proceedings, but that there was an advance draft copy which was the property of the APA. However, Anderson stated that he had brought his own tape recorder to the proceedings, and he also had transcribed notes taken by a shorthand reporter. The advance draft copy of the proceedings was transcribed by secretaries working for Mr. Brisentine. Anderson testified that a representative of the state Attorney General's office attended the hearings, but that he did not know whether he had a copy of the proceedings. He did not think that the Milwaukee District Attorney had a copy. The trial court denied defense counsel's request that the witness produce a copy of the transcript.

Out of the presence of the jury, defense counsel made an offer of proof that Mr. Anderson erred in the construction of his control and relevant questions and that Mr. Anderson's scoring of the defendant's polygraph test followed no recognized or approved procedure. The trial court said the defense could cross-examine Anderson before the jury, but that he would not allow the defense to put on any experts to rebut Anderson. Defense counsel stated that denial of the use of the defense experts at the voir dire examination of Anderson and at trial before the jury constituted denial of the defendant's right to a fair trial, to confront witnesses and to cross-examine.

Anderson was then called to testify in front of the jury. He reiterated his testimony about his training and the circumstances surrounding his probationary status with the APA. He testified that based on his polygraph examination it was his opinion the defendant was not telling the truth when he denied robbing the gasoline station.

Additional facts will be presented in the balance of this opinion.

ISSUE# 1: WAS THE DEFENDANT DENIED THE RIGHT TO CROSS-EXAMINATION, IMPEACHMENT, AND THE RIGHT TO CALL WITNESSES IN HIS OWN BEHALF WHEN TRIAL COURT REFUSED TO ALLOW HIM TO CALL HIS OWN POLYGRAPH EXPERTS TO TESTIFY AS TO THE PROCEDURES USED BY THE STATE'S POLYGRAPH EXAMINER?

A.

In State v. Stanislawski, 62 Wis.2d 730, 216 N.W.2d 8 (1974), this court held that polygraph testimony is admissible under certain circumstances. First, the district attorney, defendant, and defense counsel must all sign a written stipulation providing for defendant's submission to the test, and for the admission at trial of the graphs, and the examiner's opinion on behalf of either the defendant or the state. Second, notwithstanding the stipulation, the...