State v. Biddle

• Decision Date: 13 May 1980
• Docket Number: No. 61784,61784
• Citation: 599 S.W.2d 182
• Parties: STATE of Missouri, Respondent, v. Thomas Woodrow BIDDLE, Appellant.
• Court: Missouri Supreme Court

Page 182

599 S.W.2d 182

STATE of Missouri, Respondent, v. Thomas Woodrow BIDDLE, Appellant.

No. 61784.

Supreme Court of Missouri, En Banc.

May 13, 1980.

Rehearing Denied June 10, 1980.

Dale Reesman, Boonville, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

Thomas Woodrow Biddle, charged as a second offender, was convicted by a jury of robbery, first degree, § 560.120, RSMo 1969, and the court fixed his punishment at imprisonment for twenty-five years. The court of appeals reversed on a determination that the evidence was insufficient to sustain conviction. One member of the court, in dissent, certified for the purposes of transfer to this court that he deemed the majority opinion in conflict with prior Missouri case law regarding the admissibility of polygraph examination results and the sufficiency of the evidence to sustain a conviction, Mo.Const. art. V, § 10; Rule 83.01, matters which we address in our opinion. ¹

At approximately 8:30 p. m. on September 9, 1975, two men wearing nylon stocking masks entered the Wagon Wheel Liquor Store located about one half mile east of Otterville, Missouri, on U.S. Route 50 in Cooper County. The taller of the two, armed with a sawed-off shotgun, demanded that Betty Starke, owner of the store, hand over all her money. Money taken by the robbers from the cash register, a closet in back of the store and the victim's purse totalled $629.00, including sixty to seventy dollars in coins. Among the coins taken were two half-dollars bearing a bicentennial year commemoration which Mrs. Starke had saved for her daughter. Just as the robbers were leaving, Mrs. Starke heard her husband entering through the back door. She ran to the back door to warn her husband. Consequently, she did not see how or in what direction the two men fled.

Mrs. Starke called Deputy Sheriff McIntyre in Otterville at about 9:00 p. m. When he arrived a few minutes later, the victim could give no description of the two men except that one was over six feet tall. She later identified the tall man; she never was able to identify the shorter of the two men, was unable to identify the type of clothing he was wearing, and did not know whether he was white or black.

The Missouri State Highway Patrol was alerted by radio. Trooper Carlyle arrived at the Wagon Wheel at about 9:08 p. m. He talked with Mrs. Starke and Deputy McIntyre and proceeded to patrol the roads in search of the two robbers. Trooper Hurt arrived in the area between 9:30 and 10:00 p. m., and proceeded to search the highways and back roads. Trooper Hurt received a report over C.B. radio at 2:30 a. m. that a man was seen entering a ditch next to U.S. 50 four to five miles east of the liquor store. The ditch was some eight or ten feet from the highway and defendant was visible to the trooper. The trooper ordered defendant from the ditch, then arrested, handcuffed, and frisked him, and thereby discovered that defendant had a pocket full of change. The area was described by the trooper as fairly open with better hiding places nearby. Defendant was wearing a short sleeve T-shirt and blue jeans. Defendant appeared to have been drinking, although the troopers did not believe that he was intoxicated. They thought that he was feigning drunkenness.

Defendant was taken to the Cooper County jail and although later rearrested, was released on the evening of September 10 for want of identification as one of the robbers. Upon his release, the $22.50 in coins seized from him was returned, at which time the sheriff observed among the coins two half-dollars bearing the bicentennial year commemoration.

At the trial, defendant's father testified that defendant had stopped by his father's home in Columbia, Missouri, early on the evening of September 9th; that defendant counted out and borrowed approximately $15.00 in change from a can full of coins. Two witnesses testified that defendant was at the Hitching Post Tavern in nearby Rocheport, some fifty miles from Otterville, on the evening of September 9 and left the tavern alone at approximately 8:45 or 9:00 p. m. Defendant did not testify.

According to Sheriff Morris, defendant, while in custody, related that on the night of September 9th, he had been in a poker game in the Otterville area and became intoxicated. He did not know who drove him to the game or the names of any persons in the game. The unknown person who drove him to the poker game had left the game without him and defendant had started walking towards Rocheport or Columbia when he was arrested.

While awaiting trial, defendant submitted to a polygraph (also known as a "lie detector") examination per a written stipulation entered into with the state. Pursuant to a clause contained in the written stipulation which permitted either party to offer the results of the polygraph examination in evidence, the state called the polygraph examiner whose testimony, in substance, was that in his opinion defendant's response to questions relating to participation in, knowledge of, and receipt of any proceeds of the robbery in question "indicated deception". The defendant had filed a motion to suppress the results of the polygraph examination and renewed his objection thereto during the trial on the ground that the state breached the terms of the stipulation. A further stipulation entered into between the state and the defendant provided evidence that defendant escaped from the Moniteau County jail while awaiting trial and was later apprehended in the state of California.

On appeal, the court of appeals en banc held that "testimony as to the results of polygraph examinations does not constitute substantive evidence of an accused's guilt . . ." As briefly noted above, one of the judges dissented and certified for the purposes of transfer to this court that the court of appeals opinion was in conflict with State v. Fields, 434 S.W.2d 507 (Mo.1968), and that the limitation on the use of polygraph results impinged upon the rule "that the weight of the evidence is the sole prerogative of the jury." The dissent also asserted that the court's decision was in error "in its holding that the circumstantial evidence presented by the state fails to make a submissible case of appellant's guilt."

I

The results of polygraph examinations are inadmissible as evidence in a criminal trial because they lack scientific support for their reliability. State v. Weindorf, 361 S.W.2d 806, 811 (Mo.1962); State v. Cole, 354 Mo. 181, 188 S.W.2d 43, 51 (1945). ² At least 40 other jurisdictions follow the general rule that the results of a polygraph examination are inadmissible in evidence to show the guilt or innocence of the accused. People v. Monigan, 72 Ill.App.3d 87, 28 Ill.Dec. 395, 390 N.E.2d 562, 565 (1979). Likewise inadmissible in evidence are an accused's offer or professed willingness to submit to a polygraph examination, State v. Bibee, 496 S.W.2d 305, 316 (Mo.App.1973), and testimony or prosecutorial comment to the effect that the accused was unwilling to undergo a polygraph examination. State v. Faught, 546 S.W.2d 515, 519 (Mo.App.1977).

A

In State v. Fields, supra, a division of this court considered the question of the admissibility of polygraph examination results in terms of the constitutional issue regarding self-incrimination, when prior to trial both parties have waived objections to their admissibility. The court explicitly refused to decide the issue of the examination results admissibility as it relates to the lack of scientific acceptance of their accuracy: "We decline now to rule upon the admissibility of this evidence from the standpoint of the scientific acceptance or nonacceptance of such tests or of their accuracy." 434 S.W.2d at 513. The opinion then noted that constitutional rights may be intelligently and voluntarily waived by a defendant and concluded that the defendant in that case had expressly waived through his stipulation any constitutional objection to the admissibility of the evidence. In the conclusion of its discussion of this point, the court in Fields noted:

"We hold that none of defendant's constitutional rights or privileges were infringed, under these circumstances, by the admission of this evidence. The weight of the evidence was solely for the jury . . ."

434 S.W.2d at 515. The court did not elaborate on what it meant by "weight of the evidence," nor was such an elaboration necessary in a decision expressly limited to consideration of the narrow constitutional issue presented and where the use of the polygraph evidence was not essential to the making of a submissible case against the defendant. ³ Fields did not hold that parties may by stipulation make inadmissible evidence somehow admissible or that parties may by stipulation bind or circumscribe a court in its determination of questions of law. ⁴

Despite the narrow issue decided in Fields, the opinion has been read by the appellate courts of this state to permit the admission in evidence of polygraph examination results, otherwise inadmissible for lack of scientific support for their reliability, where the defendant has waived objections to admissibility by stipulation. In State v. Mick, 546 S.W.2d 508 (Mo.App.1976), the court of appeals stated, citing Fields, "However anomalous it may be, the parties by stipulation, may waive objections to the admission of polygraph examinations and their results, and in that sense imbue them with reliability and probative value." 546 S.W.2d at 509. In State v. Scott, 570 S.W.2d 813 (Mo.App.1978), the court of appeals stated, also citing Fields, that "the results of the polygraph examination administered to the defendant would have been inadmissible as evidence because they lacked scientific support for their reliability . . . . (citations omitted.) However, the written stipulation entered into between the parties gave the polygraph examination administered to defe...