Slagle v. State

• Decision Date: 29 August 1979
• Docket Number: No. 3-1078A289,3-1078A289
• Citation: 393 N.E.2d 798,182 Ind.App. 5
• Parties: Dennis C. SLAGLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 798

393 N.E.2d 798

182 Ind.App. 5

Dennis C. SLAGLE, Appellant (Defendant Below), v.STATE of Indiana, Appellee (Plaintiff Below).

No. 3-1078A289.

Court of Appeals of Indiana, Third District.

Aug. 29, 1979.

David D. Wilson, Hartford City, for appellant.

Theo.L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

Dennis C. Slagle was convicted by jury of the crimes of theft as charged in Count II of the information and the lesser included offense of theft of property of a value less than $100 under Count I of the information.¹He was sentenced to serve one to five years imprisonment at the Indiana Department of Correction on each Count.

On appeal, Slagle raises four issues for our consideration.Did the trial court err when it:

(1) refused Slagle's request to file an amended motion to correct errors;

(2) allowed into evidence a written memorandum of Slagle's prior criminal activity;

(3) allowed the police officer who administered the polygraph test to testify as an expert; and

(4) allowed into evidence the results of a polygraph test administered to Slagle after he signed a Miranda waiver form and consent form to the test?

We reverse.

The facts relevant to our disposition of the case are as follows.During the early morning hours of June 2, 1977, Charles Miller saw a man with a beard carry a C.B. radio and another item from his neighbor's pick-up truck.The man took the radio in the direction of some Conrail sleeping cars parked on a nearby railroad line.The same morning James Ousnamer saw a long-haired man a few feet from his garage.By the time Ousnamer had gotten dressed and outside, the man had disappeared.Ousnamer started to look for him.During his search, he heard a noise he described as sounding "like fishing poles clashing" coming from some railroad cars parked on a nearby rail line.When Ousnamer returned home, he discovered two fishing poles had been stolen from his garage.

The police, who had been summoned by Ousnamer, searched the railroad yard where he had heard the noise.They discovered his fishing poles and a lantern in a sleeping car in which Slagle was lying on a bunk.Underneath a nearby railroad car, the police found a C.B. radio, belonging to Miller's neighbor.

On appeal, Slagle urges that the trial court erred in (1) refusing his request to file an amended motion to correct errors and (2) allowing into evidence a written memorandum of his prior criminal activity.Due to Slagle's failure to set out a specific argument applicable to each of these errors raised on appeal, they are deemed waived.²Neither legal argument nor authority were cited in support of his contentions.We will not address assertions of error which are unsupported by argument or authority.Southerland v. Calvert(1974), 162 Ind.App. 606, 320 N.E.2d 803.

Slagle next contends that the court erred in allowing the police officer who administered the polygraph test to testify as an expert.An expert can be "qualified" by evidence of formal training or practical experience.Culley v. State (1979), Ind.App., 385 N.E.2d 486.This determination is within the sound discretion of the trial court and will not be set aside unless there is a showing of abuse of discretion.Niehaus v. State(1977), 265 Ind. 655, 359 N.E.2d 513.

The record reveals that Officer Yohn administered the polygraph test.He testified that he had attended the Keeler Polygraph Institute for one year, six weeks of which had consisted of in-house training.For the correspondence portion of the training, Officer Yohn had completed 150 examinations with Institute supervision.He had also attended the Institute for an advanced training session.Officer Yohn had conducted 260 polygraph examinations prior to Slagle's trial.

We conclude that the trial court did not abuse its discretion in finding the training and background of Officer Yohn were sufficient to qualify him as an expert.The extent of his experience is more properly addressed to the weight of his testimony.Blair v. State (1977), Ind.App., 364 N.E.2d 793.

Slagle finally contends that the trial court erred in allowing the results of the polygraph examination, administered to Slagle after he signed a Miranda waiver form and a consent form to the test, into evidence.We agree.

Generally, the results of a lie detector test are incompetent evidence and, as such, inadmissible at trial.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 polygraph test, the court may admit the results into evidence.Owens v. State (1978), Ind.App., 373 N.E.2d 913.There, the court said that the defendant's signing of a Miranda rights waiver form did not act as a waiver of his right to object to the use of incompetent polygraph test results.Such a waiver can be accomplished only by a written stipulation signed by the State, the defendant and his counsel.Owens, supra, at 915.

Our Supreme Court in White v. State (1978), Ind., 381 N.E.2d 481 impliedly adopted the strict waiver requirements articulated by the Owens court.There, in a waiver hearing, the defendant clearly waived her right to object to the admission of the results of a polygraph test.Not only was the defendant closely questioned as to her understanding of the waiver by her own counsel, but the court carefully questioned her as well.The court asked her in a number of different ways whether she understood that without her waiver, the results of the test would be inadmissible.White, supra, at 484, n. 1.

In the case at hand, Slagle signed the following two-part waiver form.

"I, S/ Dennis Charles Slagle, do hereby request, voluntarily, without duress, coercion, threats, promises of reward or immunity, to be examined by the Keeler Polygraph (lie detector) detection of deception technique.I understand that operation of this device involves the use of electronic apparatus for the recordation of emotional and vocal responses.I have had the nature of this examination explained to me, and do hereby consent both to the placing of the necessary apparatus upon my person, and to the use of any electronic hearing or recording devices operated contemporaneously with this examination.I do hereby release and forever hold harmless the Sheriff of Elkhart County, the Elkhart County Sheriff's Department, their agents and employees, from any liability flowing either from the operation of the devices or use of the results obtained therefrom.I further agree that the results of this examination may be made available to proper authorities."

"I have the right to remain silent, anything I say can be used against me in a court of law.I have the right to talk to a lawyer and have him present with me while I am being questioned.If I...