Owens v. State
| Citation | 176 Ind.App. 1,373 N.E.2d 913 |
| Decision Date | 22 March 1978 |
| Docket Number | No. 1-577A112,1-577A112 |
| Parties | Gerald Dean OWENS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Court of Appeals of Indiana |
Kendall, Stevenson & Lowry, J. V. Boles, Danville, for appellant.
Theo. L. Sendak, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Gerald Dean Owens appeals from his conviction for theft. 1
On August 5, 1976 Owens was sitting in the Ex-cel service station in Hendricks County reading his newspaper, while the service station manager counted his receipts. When the manager finished counting the receipts he placed them in a paper bag and put the bag into a drawer. The manager then went out to wait on customers and to repair a door, leaving Owens alone in the front room of the station. While Owens was reading his paper another service station employee came in and out of the room a couple of times.
After having been in the service station for about 11/2 hours, Owens took his newspaper and left. A few minutes later the manager discovered that the sack containing the service station receipts of more than $500 was missing.
The manager called the state police, who in turn contacted Owens and asked him if he would submit to a polygraph or lie detector test. Owens agreed to take the lie detector test, which was administered by Sergeant John Danberry of the Indiana State Police. Prior to taking the lie detector test Owens signed a waiver of rights form. He also signed a written stipulation wherein he and the Hendricks County prosecutor, Seth Lewis, purportedly agreed that Sergeant Danberry was a qualified polygraph examiner and that Danberry's questions, Owens' answers and reactions, and Danberry's opinion as to the meaning of Owens' answers and reactions could be received into evidence on behalf of either Owens or the State. The written stipulation was signed by Owens and by Danberry but not by the prosecutor, Lewis.
The results of Owens' polygraph examination were interpreted by Danberry to mean that Owens was lying when he said that he did not steal the money. At trial the results of the lie detector test were admitted over Owens' objection on the basis of the stipulation executed by Owens and the State. The only other evidence presented at trial which tended to show Owens' guilt was the testimony of the service station manager that Owens was the only one, besides the manager, who was alone in the front office of the service station prior to the discovery of the disappearance of the money, and the testimony of certain persons who testified that Owens paid off some overdue debts shortly after the time of the theft.
The issue which has been presented to this court for review is as follows:
1. Whether the trial court erred in allowing the results of the lie detector test to be introduced into evidence.
As a general rule the results of a lie detector test are not competent evidence and are, therefore, inadmissible at trial. See Zupp v. State (1972), 258 Ind. 625, 283 N.E.2d 540, and Vacendak v. State (1976), 264 Ind. 101, 340 N.E.2d 352. However, where all the parties by stipulation have waived any objection concerning the competency of the results of a lie detector test, the court may allow the results of that test to be admitted into evidence. See Moore v. State (1977), Ind., 369 N.E.2d 628, and Vacendak, supra.
In People v. Potts (1966), 74 Ill.App.2d 301, 220 N.E.2d 251, 252-253, the Appellate Court of Illinois quoted from State of Arizona v. Valdez (1962), 91 Ariz. 274, 371 P.2d 894, 900, wherein the Supreme Court of Arizona set forth certain prerequisites which must be met before the results of a polygraph test can be admitted into evidence, id est :
'(1) That the county attorney, defendant and his counsel ( 2) all sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion thereon on behalf of either defendant or the state.
(2) That notwithstanding the stipulation the admissibility of the test results is subject to the discretion of the trial judge, i. e. if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence.
(3) That if the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting:
a. the examiner's qualifications and training;
b. the conditions under which the test was administered;
c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and
d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry.
(4) That if...
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