State v. Erickson

• Decision Date: 31 March 1987
• Docket Number: No. C5-86-1237,C5-86-1237
• Citation: 403 N.W.2d 281
• Parties: STATE of Minnesota, Respondent, v. Steven Lee ERICKSON, Appellant.
• Court: Minnesota Court of Appeals

Page 281

403 N.W.2d 281

STATE of Minnesota, Respondent, v. Steven Lee ERICKSON, Appellant.

No. C5-86-1237.

Court of Appeals of Minnesota.

March 31, 1987.

Review Denied April 29, 1987.

Syllabus by the Court

A signed, knowing, and intelligent waiver authorizing disclosure of appellant's statements made during a polygraph examination supports the trial court's decision to admit the statements as evidence. Admissibility does not offend appellant's right to counsel where he consulted with counsel and voluntarily chose to be interviewed alone.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Robert M.A. Johnson, Anoka Co. Atty., Marcy S. Crain, Asst. Co. Atty., Anoka, for respondent.

C. Paul Jones, Minnesota Public Defender, Susan K. Maki, Asst. Public Defender, Minneapolis, for appellant.

Considered and decided by POPOVICH, C.J., and SEDGWICK and CRIPPEN, JJ., with oral argument waived.

OPINION

CRIPPEN, Judge.

This appeal deals with admissibility of incriminating statements made to a polygraph operator. We affirm a decision to admit the statements and we find no other trial court errors.

FACTS

Criminal charges were brought against appellant Steven Lee Erickson following allegations of criminal sexual conduct. Appellant's 13-year old daughter told authorities that appellant engaged in various forms of sexual conduct with her, including sexual intercourse, between August 1982 and April 1985. Appellant denied the charges.

Anoka County authorities retained private investigator Charles Yeschke to examine appellant by administering a polygraph test. Appellant voluntarily appeared at the Anoka County Courthouse on December 11, 1985, with his attorney, Joseph Marvin. The investigator met with Marvin and explained the testing procedures. Marvin did not object to the procedures but told Yeschke that appellant had difficulty reading and writing. Particularly, Marvin did not object about Yeschke's policy to keep counsel out of the room during the test.

Yeschke gave Marvin a waiver form that Marvin was to review with appellant before appellant would be asked to sign it. The signed form would authorize Yeschke to report to Anoka County authorities on any statements appellant made to Yeschke. Appellant signed the form, and Yeschke administered the polygraph examination.

During the course of the exam appellant made several incriminating statements, declaring that he touched the bare breast and bare vagina of his daughter on several occasions during the past three years, but not sexually. Following the exam itself, Yeschke reviewed the results with appellant. "I sat in front of [appellant], explaining to him that the results indicate that he is not truthful with me * * *. He assured me that there was nothing more than touching her--[her] breasts and vagina over the clothing * * *."

Yeschke assisted appellant to prepare a written statement so that appellant would know what Yeschke was reporting to the authorities. The statement was prepared and written by Yeschke, based on appellant's declarations, and it was reviewed and signed by appellant. The statement read as follows:

Dear Investigator:

During the past three years I have needed to be close to [my daughter] as her father. On many occasions I did hug and kiss [her] as well as touch her breasts and vagina. When I touched her breasts and vagina it was in a loving way and not a sexual way. I did not gain any sexual pleasure from touching her breasts and vagina. I only wanted to show my love and concern for her. It was a loving, touching only and I did not intend to have sex with [her].

I had no other sexual type contact with [my daughter] in the past three years other than kissing [her] on the breast over her clothing. This statement has been read to me by Mr. Yeschke and I understand it. Mr. Yeschke has treated me fairly today, no one has promised me anything or threatened me in any way to make this statement."

The above is true.

Signed: Steven L. Erickson

The omnibus hearing judge ruled that appellant's oral statements and the signed letter were voluntarily given and not in violation of appellant's right to counsel. This ruling was confirmed by the trial judge and the evidence was admitted at trial.

Appellant was convicted of six alternate counts of criminal sexual conduct in the first and second degrees. He was adjudicated guilty of one count of criminal sexual conduct in the first degree, Minn.Stat. Sec. 609.342, subd. 1(a) (Supp.1985), and was sentenced to 45 months in prison. On appeal he raises a number of issues to support the contention that he was denied a fair trial.

ISSUES

1. Did the trial court err in admitting statements made by appellant during a polygraph examination?

2. Was appellant otherwise deprived of a fair trial?

ANALYSIS

1. Polygraph test results are "almost universally held" inadmissible. State v. Anderson, 261 Minn. 431, 437, 113 N.W.2d 4, 8 (1962) (citing State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952)). The "refusal or willingness of a defendant to take the test is also inadmissible." Anderson, 261 Minn. at 437, 113 N.W.2d at 8. See Kolander, 236 Minn. at 222, 52 N.W.2d at 465-66 (new trial required when court admitted evidence of defendant's refusal to take polygraph).

In Kolander, the Minnesota Supreme Court explained the basis for the rule: "the lie-detector has not yet attained such scientific and psychological accuracy, nor its operators such sureness of interpretation of results shown therefrom, as to justify submission thereof to a jury * * *." Kolander, 236 Minn. at 221, 52 N.W.2d at 465. In more recent decisions, the supreme court has consistently refused to reconsider the "long-established" rule. State v. Michaeloff, 324 N.W.2d 926, 927 (Minn.1982); State v. Goblirsch, 309 Minn. 401, 407, 246 N.W.2d 12, 15 (1976); State v. Perry, 274 Minn. 1, 12-13, 142 N.W.2d 573, 580 (1966).

The polygraph is, however, used as an interrogation or investigatory tool by law enforcement authorities, and "may frequently lead to confessions or the discovery of facts which may ultimately lead to the solution of many crimes * * *." Kolander, 236 Minn. at 221, 52 N.W.2d at 465. A majority of the states have "held that admissions made by an accused during the course of a polygraph examination are admissible where found to be voluntarily made." State v. Blosser, 221 Kan. 59, 61-62, 558 P.2d 105, 107-08 (1976) (finding only a single exception to the majority rule). See also Wyrick v. Fields, 459 U.S. 42, 48 n. *, 103 S.Ct. 394, 396 n. *, 74 L.Ed.2d 214 (1982) (although the results of a polygraph examination might not have been admissible evidence under Missouri state law, statements "made in response to questioning during the course of the polygraph examination surely would have been").

The majority rule applies the constitutional requirement for all criminal cases that the "prosecution must demonstrate * * * that [the accused's] confession was voluntary." United States v. Little Bear, 583 F.2d 411, 413 (8th Cir.1978) (citing Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972)). See also State v. Orscanin, 283 N.W.2d 897, 899 (Minn.), cert. denied, 444 U.S. 970, 100 S.Ct. 464, 62 L.Ed.2d 385 (1979). In determining voluntariness, the court must consider the totality of relevant circumstances. Id. A waiver permitting the disclosure and use of such statements must also be shown to be knowing, intelligent, and voluntary. State v. Linder, 268 N.W.2d 734, 735 (Minn.1978) (determination of the voluntariness of a waiver involves "the same kind of inquiry basically that is made to determine whether a statement is 'voluntary' within the meaning of the traditional voluntariness requirement").

The omnibus hearing court found Yeschke was acting as an agent of the State when he administered the polygraph examination. The issue of voluntariness has not come before the Minnesota Supreme Court in the context of statements made to a polygraph examiner who was not a police officer or investigator. The supreme court has, however, reviewed a trial court's determination that a defendant's confession to police officers after being told he failed a polygraph examination was voluntary under the totality of the circumstances. See State v. Jungbauer, 348 N.W.2d 344, 346 (Minn.1984).

In Jungbauer, the supreme court criticized a promise made to the defendant by the police that if he confessed they would release him on his own recognizance and use a summons rather than an arrest warrant to bring him in after he was formally charged. Id. at 346. The court nevertheless upheld the trial court's determination, citing the absence of misrepresentation by the police as to the reliability or admissibility of the test results, the lack of prolonged interrogation, the fact that the promise was not the sort of promise that might tempt an innocent person to confess, and the defendant's previous exercise of his right to silence. Id. at 346-47 (the making of a promise does not automatically render any confession involuntary; rather, the court must consider all circumstances and factors that bear on voluntariness).

This court has had one previous opportunity to consider the voluntariness of statements made to a polygraph examiner who was not a police officer or investigator. See State v. Davis, 381 N.W.2d 86 (Minn.Ct.App.1986). In Davis, the issue was "largely one of the relative credibility of Davis and [the polygraph examiner]," and the trial court "believed Davis' version of what occurred * * *." Id. at 88. The trial court in Davis found the examiner had exceeded his authority when he administered the test, had attempted to convince the defendant that the polygraph test is foolproof, that the written statement he prepared was a result of impermissible and reprehensible remarks, and that the statement was not in the defendant's own words. Id. Giving deference the trial court's latitude in credibility determinations, this court found the "trial court had...