People v. Zazzetta, 36837

CourtSupreme Court of Illinois
Citation189 N.E.2d 260,27 Ill.2d 302
Docket NumberNo. 36837,36837
PartiesThe PEOPLE of the State of Illinois, Defendant in Error, v. Robert ZAZZETTA, Plaintiff in Error.
Decision Date22 March 1963

Fearer & Nye, Rochelle (Philip H. Nye, Jr., Rochelle, of counsel), for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Wayne R. Bettner, State's Atty., Oregon (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., of counsel), for defendant in error.

SOLFISBURG, Chief Justice.

Defendant, Robert Zazzetta, was indicted in the circuit court of Ogle County for burglary. He pleaded not guilty, was tried by a jury, found guilty, and sentenced to the penitentiary for a term of not less than two years nor more than five years. He prosecutes this writ of error from that judgment.

The service station-restaurant of Donald Peekin, located on U. S. Route 51 near the junction of that highway and Holcomb Road in Ogle County was burglarized between the closing time on the evening of November 2, 1960, and opening time in the early morning hours of November 3, 1960. Numerous small articles were taken from the restaurant and tools from the service station. The cook at the restaurant notified the owner of the burglary the next morning and the Ogle County sheriff's office was notified at approximately 7:15 A.M.

The defendant and one Donald Carl were arrested by the Rockford Police Department at about 5:30 A.M. on the morning of November 3, 1960, in an apartment in Rockford, Illinois. The defendant, according to the record, was not committing any crime at the time of his arrest. He was handcuffed and the arresting officers searched his person and found a set of keys in his pocket. Officer Matthews testified that he asked the defendant what the keys were for and he had answered they were for a car downstairs. The officer then asked the defendant if he cared if he (the officer) went and looked at it and the defendant said no. The defendant was then taken to the police station and the officer that remained looked in the car and opened the truck and found in the back seat and in the trunk many of the articles that had been taken from the service station-restaurant. The car was then brought in and placed in the police barn where subsequently the articles found in the car were connected with the burglary.

Defendant contends that the trial court committed error in admitting into evidence the results of a lie-detector test taken by the defendant pursuant to a purported stipulation. It is also his contention that the trial court erred in admitting testimony concerning the stolen goods found in the defendant's car, as the officers did not know of the burglary at the time that they arrested the defendant nor was he committing any crime at the time and, therefore, the arrest was illegal and the search incidental thereto unreasonable.

The State argues that the defendant knowingly and understandingly agreed that the results of the polygraph test, a test that he requested, might be introduced in evidence in the trial of the case, and having so stipulated he cannot be heard to complain. The State also insists that evidence obtained by the search was properly admitted because no motion to suppress was made prior to trial; the items seized were in plain sight, and the defendant consented to the search.

We first will consider the admission into evidence of the results of a polygraph or 'lie detector' test. This is a case of first impression in Illinois, and our decision must be based upon the particular facts presented to us. After defendant's arrest, he apparently contacted an attorney in Sycamore, Illinois. That attorney has never appeared of record for defendant, but apparently called the State's Attorney and suggested that defendant be given a polygraph test. Thereafter, defendant appeared in open court without counsel and was questioned by the court as follows:

'Q. Is it your desire to have the lie test?

'A. Yes, sir.

'Q. You heard the State's Attorney say in the event the result of of the test is unfavorable to you, then you intend to enter a plea of guilty?

'A. I didn't say that, no.

'Q. Or put it in another way, in the event that the test turns out to be unfavorable to you, and you still insist upon a jury trial, you are willing to stipulate in open Court that it will be perfectly proper for the State's Attorney to offer the result of the test in evidence on the trial of the case-you understand that clearly?

'A. Yes, sir.

'Q. And you are so stipulating now?

'A. Yes, sir.'

Thereafter defendant took a polygraph test, and upon trial a report of the test was introduced in evidence over the objection of defendant. The report, which was admitted without foundation, read in part as follows:

'There were significant emotional disturbances indicative of deception in this subject's polygraph records on the following questions:

'(1) Were you with Donald Carl on that gas station burglary the night of November 2?

Answer: No.

(Filed Mar. 9, 1961 Morris M. Roe, Clerk)

'(2) Did your burglarize Don Peekin's gas station the night of november 2?

Answer: No.

'(3) Were you telling the truth when you signed that burglary confession?

Answer: No 'It is the opinion of the examiner, based on this subject's polygraph records, that he is not telling the truth on the above listed questions.'

In the absence of stipulation, our courts, without exception, reject the results of liedetector tests when the same are offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime. (People v. Jones, (1962) 52 Cal.2d 636, 343 P.2d 577; Dugan v. Commonwealth, (Ky., 1961) 333 S.W.2d 755; Boeche v. State, (1949) 151 Neb. 368, 37 N.W.2d 593; People v. Dobler, (1961) 29 Misc.2d 481, 215 N.Y.S.2d 313; State v. Smith, (1947) 113 Ohio App. 461, 178 N.E.2d 605; Henderson v. State, (1951) 94 Okl.Cr. 45, 230 P.2d 495, 23 A.L.R.2d 1292.) The reason most commonly assigned for the exclusion of the results of a lie-detector test from evidence is the contention that the lie detector has not yet attained sufficient scientific acceptance as a reliable and accurate means of ascertaining truth or deception as to be acceptable in a court of law. The Oklahoma Criminal Court of Appeals in the leading case of Henderson v. State, 94 Okl.Cr. 45 at 54, 230 P.2d 495 at 506, which involved an attempt by the defendant to introduce into evidence the results of negative lie-detector and truth-serum tests, after an exhaustive review of the existing authority on the reliability of lie-detector and truth-serum tests, concluded: 'It is therefore apparent that the efficacy of neither the lie detector or the truth serum test have gained that standing and scientific recognition nor demonstrated that degree of dependability to justify the courts in approving their use in the trial of criminal cases. Therefore, the trial court was not in error in sustaining the State's objection to the defendant's tender of the results of such test to which he contends he consented.'

A few courts have ruled inadmissible testimony in regard to lie-detector tests on the ground that no expert evidence had been introduced showing a general scientific recognition of the efficacy of such tests. (People v. Becker, (1942) 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171.) Other objections have been raised by the courts to the introduction of the results of lie-detector tests, in addition to that of the lack of scientific recognition. Some courts have claimed that the use of lie-detector tests would only serve to distract the jury. (State v. Cole, (1945) 354 Mo. 181, 188 S.W.2d 43.) Other courts claim that the introduction would permit the defendant to have extra-judicial tests made without the necessity of submitting to similar tests by the prosecution. (State v. Bohner, (1933) 210 Wis. 651, 246 N.W. 314, 86 A.L.R. 611.) Another objection is that a lie-detector test is not susceptible to cross-examination. (State v. Lowry, (1947) 163 Kan. 622, 185 P.2d 147.) There is no Illinois case which squarely meets the problem of the admission of the results of lie-detector tests into evidence.

There are so few cases which can be found regarding the admissibility of stipulated lie-detector tests, that it is somewhat difficult to formulate any general rule concerning the same, other than that the courts show the same reluctance in admitting stipulated tests as they do any other type of lie-detector test. (State v. Trimble, (1961) 68 N.M. 406, 362 P.2d 788; Colbert v. Commonwealth, (Ky., 1957) 306 S.W.2d 825.) In People v. Houser, (1948) 85 Cal.App.2d 686, 193 P.2d 937, it was held that where the defendant in a prosecution for a sex crime stipulated in writing that the entire results of a lie-detector test might be received in evidence on behalf either of the prosecution or of the defense, and that the operator of the lie detector was an expert operator and interpreter of results of such test, the defendant could not object to the admission of such...

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