State v. Brionez

• Decision Date: 25 October 1977
• Docket Number: No. 3048,3048
• Citation: 573 P.2d 224,1977 NMCA 123,91 N.M. 290
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael BRIONEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 224

573 P.2d 224

91 N.M. 290

STATE of New Mexico, Plaintiff-Appellee, v. Michael BRIONEZ, Defendant-Appellant.

No. 3048.

Court of Appeals of New Mexico.

Oct. 25, 1977.

[91 N.M. 292] Anthony E. Lucero, Jr., Albuquerque, for defendant-appellant.

Toney Anaya, Atty. Gen., Dennis P. Murphy, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of criminal sexual penetration in the second degree by the use of force or coercion which results in personal injury to the victim. Section 40A-9-21(B)(2), N.M.S.A.1953 (2d Repl. Vol. 6, Supp.1975). His appeal challenges the sufficiency of the evidence as to "force or coercion" and as to "personal injury". The evidence as to these items is substantial and sufficient to sustain the conviction. The question discussed is the trial court's exclusion of testimony concerning the results of a polygraph test. This has two aspects: (1) the standard of review where the evidence is excluded; and (2) application of the standard in this case.

The indictment charged defendant with one count of kidnapping and three counts of criminal sexual penetration. The jury agreed only on the one count where he was found guilty. A mistrial was declared as to the other counts. The verdict of guilty was on a count where defendant admitted that sexual intercourse had occurred. His defense to this one count was that it was with the victim's consent.

Because defendant and the victim disagree on the consent issue, defendant contends that evidence supporting his credibility was critical to the defense. He asserts that the results of the polygraph test supports his version of the facts and the trial court's exclusion of the test results deprived him of the right to put on a defense. We agree that exclusion of the polygraph test results excluded testimony which would have favored the defense. Whether exclusion of the test results was error, however, depends on the basis for excluding this testimony.

The Standard for Review

The sequence of decisions resulting in the holding that polygraph test results may be admitted as evidence are State v. Alderete, 86 N.M. 176, 521 P.2d 138 (Ct.App.1974); State v. Lucero, 86 N.M. 686, 526 P.2d 1091 (1974); State v. Dorsey, 87 N.M. 323, 532 P.2d 912 (Ct.App.1975); and State v. Dorsey, 88 N.M. 184, 539 P.2d 204 (1975). State v. Bell, 90 N.M. 134, 560 P.2d 925, 929 (1977) summarized the requirements for admissibility. "These requirements are: (1) evidence of the qualifications of the operator, (2) testimony to establish the reliability of the testing procedure, and (3) the validity of the tests made on the subject."

At an extended evidentiary hearing, defendant tendered evidence in connection with each of the above three requirements. He seems to argue that once such evidence was tendered, the trial court was required to admit the test results. State v. Bell, supra, shows this contention is incorrect. Bell states:

"It is true that the minimum standards thus set forth were satisfied by the polygraph test, since the State stipulated to the first two requirements and no objection was made to the third; but this is (sic) no way makes the evidence automatically subject to admission. There is always the question of relevance." (Our emphasis.)

In this case, we are not concerned with relevance so much as whether the standards were in fact met. The trial court heard the tender and ruled that the standards for admission were not met, as a matter of fact. On what basis does an appellate court review the trial court's ruling?

Generally speaking, the admission or exclusion of evidence is a matter within the discretion of the trial court. The trial court's decision will not be disturbed on appeal unless there has been an abuse of discretion. State v. Ramirez, 89 N.M. 635, 556 P.2d 43 (Ct.App.1976); State v. Marquez,87 N.M. 57, 529 P.2d 283 (Ct.App.1974). An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances or the reasonable, probable and actual deductions to be drawn from the facts and circumstances. State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970).

The same rule applies when the trial court rules on the admissibility of expert testimony. State v. Garcia, 76 N.M. 171, 413 P.2d 210, 214 (1966) states:

"It is the trial judge's responsibility to determine whether an offered expert is sufficiently qualified to testify in a cause, and he should exercise discretion in allowing or denying the testimony to be introduced. This discretion will be interfered with by us only when it has been abused."

See State v. McAdams, 83 N.M. 544, 494 P.2d 622 (Ct.App.1972). This rule is the same in civil cases. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 39 A.L.R.3d 207 (Ct.App.1969).

Judge Sutin's opinion in State v. Alderete, supra, states that when the requisite foundation is laid "the admission in evidence of a polygraphic test is within the discretion of the trial court." We agree. The polygraph test result is offered by the operator on the basis of the operator's expertise. See Judge Wood's opinion in State v. Alderete, supra. The admission or exclusion of polygraph test results, like the admission of other expert testimony, is within the discretion of the trial court. The trial court's ruling is reviewed to determine whether there was an abuse of discretion.

Application of the Standard

The method of testing used was to ask defendant a "control" question and then follow the control with a "relevant" question. Defendant's responses to these questions were recorded on a chart. The operator interpreted these charted responses. The difference in the responses between the control and relevant questions was scored by the operator. The operator's opinion as to truthfulness of defendant was based on a cumulative score derived from all of the control and relevant questions asked. There is no issue as to the validity of this method of testing.

The success or failure of the test depends upon a pre-test interview. A purpose of the interview was to still any apprehension on the part of defendant and to establish a rapport between the operator and defendant. During this interview, the operator questioned defendant about matters that could interfere with the test. Also during the interview, the control and relevant questions were formulated. The exact questions were arrived at after a discussion concerning the criminal matter; in this case, the discussion included a review of the victim's and the defendant's statement. The control and relevant questions were reviewed with defendant. There is no issue as to the appropriateness of the pre-test interview or as to the appropriateness of matters covered in the interview.

In excluding the results of the test, the trial court ruled the operator was not qualified to administer the tests and that the testing procedures were not valid. In connection with these rulings, we discuss: 1. Was the operator qualified to administer the tests? 2. Was the pre-test questioning sufficient? 3. Were the relevant questions appropriate? 4. Was the scoring system valid?

1. Was the operator qualified?

The operator agreed, on cross-examination, that the mental health of an examinee can affect the responses of the examinee and thus the validity of the test. He admitted that he would not test a psychotic person because such a person is unpredictable in his reactions. He admitted that he was not competent to take a psychiatric history. He disagreed with writings of an admitted expert to the effect that a neurotic person's responses were also unpredictable and asserted that he could validly test a sociopath.

The cross-examiner questioned the operator as to his knowledge of defendant's mental history, asking if the operator knew that defendant had been diagnosed as a paranoid schizophrenic, as a sociopathic personality and as having some unstated capacity for self-delusion. The operator did not know of these matters.

Defendant asserts we should not consider these matters because the prosecutor introduced no evidence as to whether they were in fact a part of defendant's mental history. The prosecutor had indicated to the trial court that such evidence could be produced and would be if the trial court allowed the polygraph test results into evidence. The trial court agreed such evidence would be admissible if the test results were admitted because such evidence would be relevant to the validity of the tests. We do not consider the schizophrenic, sociopathy or self-delusion items further because there is no evidence to support such a consideration. The operator had no knowledge concerning them; the prosecutor tendered no evidence concerning them.

The victim testified that prior to the alleged third act of sexual intercourse, defendant told her that he had problems with his head and was "mentally off". This testimony was before the trial court at the time of the hearing concerning admission of the polygraph test results. In light of the operator's admission that mental health can affect the responses of the person being examined, his admission that he was not qualified to take a psychiatric history, his testimony that he would not test a psychotic, but could validly test a sociopath, the trial court could conclude that the operator was not...