Stack v. State, 29324

• Decision Date: 18 March 1975
• Docket Number: No. 29324,29324
• Parties: , 88 A.L.R.3d 216 Howard Jackson STACK v. The STATE.
• Court: Georgia Supreme Court

Page 514

214 S.E.2d 514

234 Ga. 19, 88 A.L.R.3d 216

Howard Jackson STACK v. The STATE.

No. 29324.

Supreme Court of Georgia.

March 18, 1975.

Rehearing Denied March 25, 1975.

Grace W. Thomas, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

JORDAN, Justice.

This case is before this court on appeal and for mandatory review of the death sentence imposed. The appellant and Wes Ramer were indicted in Fulton County, Georgia for the murder of Frank A. Meinke occurring on September 2, 1973; Wes Ramer entered a plea of guilty to voluntary manslaughter in return for a 15 year sentence. Appellant's trial began on December 4, 1973, and sentence was imposed on December 6, 1973.

Evidence introduced during the trial was to the following effect:

On Saturday, September 1, 1973, appellant Howard Jackson Stack, and Wes Ramer were residing at 875 Piedmont Avenue, in Atlanta. Frank Meinke, the victim, was the manager of a rooming house at that address. The occupants of the house were described as alcohol oriented. Appellant had argued with the victim on Friday evening or Saturday morning over the presence of a Negro tenant, Billy Jinks. Appellant left the house and returned later Saturday night. During the course of the day, Ramer, along with several other tenants and the victim, had been drinking.

Ramer testified as follows: That appellant returned to the house that night, drank some with the others, and then left again. Ramer escorted Meinke back to his room and returned to his own room, where he drank some more and went to sleep. Appellant woke Ramer up during the night and asked him to go downstairs with him. He and appellant then went to the victim's room and entered it while Meinke was asleep. Appellant stabbed the victim first and then urged Ramer to join in, which he did. He and appellant then went back upstairs and washed their hands. Ramer continued drinking and eventually went to bed.

The doctor who examined Meinke's body found approximately 20 stab wounds in the upper part of his body and testified that any one of several of such wounds could have produced death.

Appellant denied having participated in the murder, and stated that he had never been inside the victim's room. He last saw the victim being taken back to his room by Ramer at approximately 11:00 p.m. He saw Ramer several hours later washing his hands, and Ramer told him that there had been a fight and that he thought he had hurt Meinke.

After obtaining $15 from Ramer, appellant left town and was subsequently located and arrested in Jacksonville, Florida on September 27, 1973. Appellant testified that he had left town after the murder because he was an escapee from a North Carolina Penal Institution and feared discovery.

1. In Enumeration 5, appellant alleged error by the trial court in overruling his amended motion for new trial on each and every ground thereof.

This motion incorporates four grounds not specifically enumerated as error elsewhere in this appeal:

(a) That the court erred by admitting testimony of Wes Ramer concerning an argument between appellant and one Billy Jinks.

The purpose of this testimony and testimony of Billy Jinks who testified that appellant had 'jumped on' him and had subsequently argued with the victim about this fight was to show motive and to illustrate the state of feeling between the two men and was admissible for this purpose. Foster v. State, 230 Ga. 666(1), 198 S.E.2d 847; Scott v. State, 214 Ga. 154, 103 S.E.2d 545.

(b) That the court erred in refusing to direct a verdict for acquittal.

The court did not err in refusing a directed verdict because a co-indictee prosecution witness made inconsistent statements at the trial and had been offered a fifteen-year sentence in return for his testimony at appellant's trial where it was brought out by the state, giving the jury the background and facts weighing on the witness' credibility. Echols v. State, 231 Ga. 633(1), 203 S.E.2d 165; Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Geter v. State, 231 Ga. 615, 618, 203 S.E.2d 195.

(c) That the court erred by admitting the testimony of a polygraph operator and the tape he made of certain incriminating statements made to him by appellant when he submitted to a polygraph test.

It is the general rule in most jurisdictions that the results of a lie detector test are inadmissible when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether offered by the accused or the prosecution. This rule is based on the present scientific unreliability of such tests, 29 Am.Jur.2d 923, Evidence, § 831, and has been clearly adopted by the courts of this state. Salisbury v. State, 221 Ga. 718, 146 S.E.2d 776; Wallace v. Moss, 121 Ga.App. 366, 174 S.E.2d 196; and Cagle v. State, 132 Ga.App. 227(2), 207 S.E.2d 703.

This rule was recognized by the trial judge, who correctly held that the results of the polygraph test could not be admitted into evidence, but over strenuous objection from defendant's counsel allowed the polygraph operator to testify as to certain statements made to him during the progress of the test.

To determine whether under such circumstances this incriminating conversation was admissible we must look to the record surrounding its admission. The state's main witness was Wes Ramer, the purported accomplice of the defendant, who testified that he and the defendant entered the room of the deceased while he was asleep, that both of them stabbed him several times, then left the room and returned to their quarters where they washed the blood from their hands. Ramer further testified that on a plea bargain he had entered a plea to involuntary manslaughter and been given a 15 year sentence.

After this testimony the state offered witness Robinson of W. A. Robinson Associates, who testified that he was a polygraph operator; that he gave a test to Wes Ramer who told him during the test that he and appellant Stack killed the deceased and that Ramer signed a statement to that effect. Robinson testified that he saw Stack at the time he was testing Ramer and that Stack was 'in another room taking a polygraph test'; that a statement was prepared for Stack but that he refused to sign it.

The state, still presenting its case in chief, then called witness McDaniel to the stand who identified himself as a polygraph examiner for W. A. Robinson Associates. Upon continued objection by defense counsel 'as to results or any conversation that took place during the polygraph examination,' a colloquy ensued between the court and counsel with the district attorney stating that, 'I just asked him if he administered the tests for the purpose of letting the jury know where he had seen this man before.' The state then tendered into evidence a document which was identified by witness McDaniel as 'a statement of consent which must be signed by any person prior to admission of a polygraph examination' and that Stack signed the same in his presence. Defense counsel objected to the admission of this document and at this point the court excused the jury. The state withdrew the proffered document and the court then conducted a hearing outside the presence of the jury. The court determined that the statements made by Stack to the polygraph operator were freely and voluntarily made and that such testimony would be admitted.

When the jury was recalled, witness McDaniel then testified that Stack told him he was in the room with Ramer when Meinke was killed and that they then left the room and went upstairs and washed their hands. This witness was later allowed in rebuttal to play a portion of a tape recording made at the time the test was made, which recording tended to verify McDaniel's verbal testimony.

We must determine from the above circumstances if any inferences were raised as to the results of the test which were prejudicial to the defendant and whether the state indirectly injected into the case evidence otherwise inadmissible. After a careful examination of the entire record we conclude that this evidence was erroneously admitted and that it cannot be said under these circumstances to have been 'unmistakably unprejudicial.'

There is a paucity of cases on this precise issue in other jurisdictions and is a matter of first impression in this state. The case perhaps closest on point is that of Johnson v. State (Florida), 166 So.2d 798. In that case the court approved the admission into evidence of a conversation between the accused and a polygraph operator but apparently on the basis that the jury could not have known the witness was a polygraph operator 'prior to the disclosure of this fact by the defense.' Under the facts of the case sub judice it is clear that the identity of the witness McDaniel as a polygraph operator was made known to the jury by the state while presenting its case and the jury was informed that he had given a lie detector test to the defendant. The Johnson case, supra, contains a rather exhaustive study of the cases touching on this subject and concludes:

'On the basis of an analysis of the cases hereinbefore discussed we conclude that while neither the results of a lie detector examination nor testimony which indirectly or inferentially apprises a jury of the results of a lie detector examination is admissible into evidence, the mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. This determination should not, of course, encourage attempts to introduce evidence concerning lie detectors. As is clear from the cited cases, such evidence is liable to be prejudicial and should be admitted only when clearly relevant and...