State v. Dorsey
| Decision Date | 12 February 1975 |
| Docket Number | No. 1469,1469 |
| Citation | 532 P.2d 912,87 N.M. 323,1975 NMCA 22 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Sammy T. DORSEY, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his conviction of murder in the second degree. Section 40A--2--1(B), N.M.S.A.1953 (2d Repl.Vol. 6). Seven issues are presented. Only one of the issues has merit. That one issue is whether the trial court erred in granting the Assistant District Attorney's motion to exclude opinion evidence concerning the results of a polygraph examination. We hold the exclusion of this evidence was error because of the New Mexico Rules of Evidence, see §§ 20--4--101 to 20--4--1102, N.M.S.A.1953 (Repl.Vol. 4, Supp.1973), and because of the requirements of due process in criminal trials.
State v. Lucero, 86 N.M. 686, 526 P.2d 1091 (1974) states:
The trial court's order excluding the evidence contains detailed findings. Unchallenged findings are to the effect that items 3, 4 and 5 of Lucero were met. Concerning the qualifications of the polygraph operator, the order contains an extensive recitation of the operator's training and experience. The order states: 'The person who administered the polygraph examination to the Defendant is a person skilled in this art and science and is qualified to interpret the results and to state that interpretation in the form of an opinion.' Concerning the reliability of the testing procedure, the order states that the test was 'well conducted' and was 'conducted under controlled circumstances'. Concerning the validity of the test results, the order states that not more than six percent of well conducted tests result in an inconclusive interpretation, that is, 'the examiner cannot tell if the subject is or is not telling the truth.'
The contested issue in this appeal concerns items 1 and 2 of Lucero. Those items require that the tests be stipulated to by the parties and that there be no objection when the test results are offered at trial. In this case there was no stipulation and it was the Assistant District Attorney who successfully sought the order excluding the evidence.
Items 1 and 2 of Lucero provide for the mechanical exclusion of evidence. Why should the evidence be excluded once items 3, 4 and 5 are met? The decisions cited in Lucero indicate the exclusionary rule applies because the test: (a) has not gained sufficient standing and scientific recognition among physiological and psychological authorities, State v. Trimble, supra; and (b) has not gained general acceptance in the particular field in which it belongs, State v. Chavez, 80 N.M. 786, 461 P.2d 919, supra. See also State v. Chavez, 82 N.M. 238, 478 P.2d 566, supra.
The reasons for the exclusionary rule are answered in this case on two grounds--the trial court's order and the concession of the Assistant Attorney General during oral argument.
The trial court found: The trial court also found: 'The basis for the polygraph examination are recognized physiological and psychological autonomic responses.' (Our emphasis.) As to 'general acceptance', the trial court's order lists federal and state agencies that utilize polygraph examinations. In addition, the trial court found: 'That private industry regularly relies on the polygraph examination in the screening of prospective job applicants.' None of the above findings are challenged.
At oral argument, the Assistant Attorney General stated that he could not justify items 1 and 2 of Lucero because neither item goes to the truth or to the reliability or validity of polygraph tests.
The trial court's findings and the concession at oral argument accord with the opinions by three judges of this Court in State v. Alderete, 86 N.M. 176, 521 P.2d 138 (Ct.App.1974). Lucero, however, overruled the opinions in Alderete, supra, to the extent they depart from the above quotation from Lucero. We are bound by the Lucero decision. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). Being bound by Lucero we may not consider the validity of the reasoning behind items 1 and 2. Accordingly, we may apply neither the trial court's findings nor the concession at oral argument, which are to the effect that no reasons exist in this case for the exclusionary rule of items 1 and 2.
Our inquiry then is whether the Lucero decision covers the circumstances of this case. Lucero neither discusses nor decides two matters raised in this case. Those matters are the effect of the New Mexico Rules of Evidence and the effect of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
The New Mexico Rules of Evidence apply in this case; they did not apply in Lucero. Section 20--4--702, supra, states:
'If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.'
On appeal, defendant asserts the test results were admissible under this rule. No such claim was raised in the trial court and will not be considered here.
The trial court found that certain tendered questions and answers (to be discussed subsequently) 'are relevant to the issues raised by the charges and the defenses thereto.' It also ruled that § 20--4--401, supra, did not change existing law. We agree since § 20--4--401, supra, does no more than define 'relevant evidence.' Section 20--4--402, supra, states:
The trial court found that the tendered questions and answers were relevant. There is no showing, and no claim is made, that the exceptions in § 20--4--402, supra, apply.
In Chambers v. Mississippi, supra, the trial court excluded the testimony of three witnesses on the ground that their testimony was hearsay. Each of the witnesses would have testified to statements by McDonald to the effect that McDonald did the shooting with which Chambers was charged. The United States Supreme Court held that the statements were made under circumstances of considerable reliability and were critical to Chambers' defense. 'In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.' Why? 'The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.' 'Few rights are more fundamental than that of an accused to present witnesses in his own defense.'
Do the two requirements of Chambers v. Mississippi, supra, exist in this case? Yes. The circumstances of considerable...
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