State v. Faught

• Citation: 546 S.W.2d 515
• Decision Date: 11 January 1977
• Docket Number: No. 10068,10068
• Parties: STATE of Missouri, Respondent, v. Daniel Lee FAUGHT, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 515

546 S.W.2d 515

STATE of Missouri, Respondent, v. Daniel Lee FAUGHT, Appellant.

No. 10068.

Missouri Court of Appeals, Springfield District.

Jan. 11, 1977.

Motion for Rehearing or Transfer Denied Feb. 7, 1977.

Application to Transfer Denied March 14, 1977.

Devon F. Sherwood, Springfield, for appellant.

John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

Before BILLINGS, C.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

A jury found defendant Daniel Lee Faught guilty of murder in the first degree and he was sentenced to life imprisonment. The victim of the slaying, which took place on April 24, 1974, was Herbert Walford ('Butch') Masters, Jr. Defendant appeals. This court has jurisdiction of the appeal. Parks v. State, 492 S.W.2d 746 (Mo. banc 1973).

Defendant's first point, a valid one, is that the trial court erred in admitting into evidence, over the objection of defendant, a portion of the testimony of state's witness Ronnie Ingram. Defendant's counsel, anticipating the testimony, made extensive objections which the trial court overruled immediately prior to its reception. The challenged testimony, involving a statement made by defendant 'in the middle of May,' 1974, is as follows:

'Q. (By the assistant prosecuting attorney) Now, Ron, you said that when you came in the door of the defendant's house he asked you if you were followed and he said that this detective had just been out there. What was the statement he made to you?

'A. His statement that he made to me was that Detective Lindsey had come out there to talk to him about to take a polygraph test about Butch's disappearance and he said, 'You know that I cannot do that,' and he was upset and nervous, and he said, 'Can they make me take a polygraph test?''

In Missouri, in the absence of a stipulation between the state and the defendant, State v. Fields, 434 S.W.2d 507 (Mo.1968), results of a lie detector test are not admissible in evidence. State v. Weindorf, 361 S.W.2d 806, 811(7) (Mo.1962); State v. Stidham, 305 S.W.2d 7, 18(20) (Mo.1957); State v. Cole, 354 Mo. 181, 188 S.W.2d 43(13) (1945). See 23 A.L.R.2d § 2, pp. 1306, 1308, where federal authorities and 39 state courts are cited to the effect that the results of such tests are inadmissible. The reason for the rejection of the results of lie detector examinations is that they lack scientific support for their reliability. State v. Jacks, 525 S.W.2d 431, 435(6) (Mo.App.1975).

In State v. Bibee, 496 S.W.2d 305 (Mo.App.1973) this court held that the trial court did not err in rejecting evidence offered by the defendant to prove that prior to the trial he was willing to undergo a lie detector test concerning his guilt or innocence. The court pointed out that an offer by an accused to take a lie detector test has no probative value because the 'accused has nothing to lose by making the offer.' The test results being inadmissible, such an offer is merely a self-serving one made without possible risk. This court also said, at p. 316: 'It is obvious that neither a professed willingness nor a refusal to submit to such a test should be admitted.' (Emphasis added)

'It is generally held in criminal prosecutions that evidence is not admissible that the accused was willing or unwilling to take a lie detector test. The contention that evidence of the accused's refusal to take a lie detector test tends to establish consciousness of guilt, and that evidence of the accused's willingness to take such a test shows consciousness of innocence, has been uniformly rejected. . . .' 29 Am.Jur.2d Evidence § 296, p. 341. To similar effect see Wharton's Criminal Evidence, 13th Ed., Vol. 3, § 630, p. 252; Underhill's Criminal Evidence, 6th Ed., Vol. I, § 150, p. 388; 22A C.J.S. Criminal Law § 636, p. 495.

Foreign authorities, impressive by their number, their respective sources, and their unanimity, have held that it is improper to admit evidence of the unwillingness of an accused to take a lie detector test. Bowen v. Eyman, 324 F.Supp. 339 (D.Ariz.1970); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957); People v. Parrella, 158 Cal.App.2d 140, 322 P.2d 83, 87 (1958); Mills v. People, 139 Colo. 397, 339 P.2d 998 (1959); State v. Chang, 46 Haw. 22, 374 P.2d 5, 12 (1962); State v. Emory, 190 Kan. 406, 375 P.2d 585 (1962); State v. Kolander, 236 Minn. 209, 52 N.W.2d 458 (1952); State v. Hegel, 9 Ohio App.2d 12, 222 N.E.2d 666 (1964); Commonwealth v. Williams, 224 Pa.Super. 298, 307 A.2d 289 (1973); State v. Britt, 235 S.C. 395, 111 S.E.2d 669, 682 (1959). Similarly it has been held that it is improper for the prosecuting attorney, in the presence of the jury, to comment upon the fact that the accused was unwilling to take a lie detector test. State v. Green, 254 Iowa 1379, 121 N.W.2d 89 (1963); State v. Stafford, 213 Kan. 152, 515 P.2d 769 (1973); State v. Driver, 38 N.J. 255, 183 A.2d 655 (1962). Anno. 95 A.L.R.2d 819 (Propriety and prejudicial effect of comment or evidence as to accused's willingness to take lie detector test.)

In Kolander, a landmark authority on the point, the state argued that although results of lie detector tests are inadmissible, evidence that defendant refused to take such a test should be admitted because it demonstrated a consciousness of guilt similar to evidence of flight. The same contention is made by the state here. The Minnesota court rejected that contention and held the admission of evidence of such refusal to be prejudicial error. The court said, at p. 465: 'The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test, if given after a proper foundation had been laid showing how the apparatus functioned.'

In Mills, where the court also rejected the 'consciousness of guilt' argument, it was held that prejudicial error arose in the admission of evidence that the defendant refused to undergo a lie detector test. The court criticized the prosecuting attorney for being overzealous and said that he had introduced 'testimony which is uniformly held to be incompetent, in an unbroken line of authorities throughout the nation.' Similar criticisms of overzealousness on the part of the prosecutor are found in Driver and Green and may be apposite here.

In Driver the prosecutor's comment upon the defendant's refusal to take a lie detector test was held to be plain error and reversible although there was no objection to it. The court said at p. 658: 'If the results of polygraph examinations are not competent evidence, a fortiori, refusal by a defendant in a criminal case to submit to one cannot be made the subject of testimony. In terms of degree of prejudice, the average jury, unfamiliar with the present scientific uncertainty of the tests, might very well be even more affected by proof of a defendant's refusal to take the test than by the evidence of results adverse to him coupled with proof of its scientific imperfection.' The court characterized the prosecutor's comment as possessing 'horrendous capacity for prejudice against the defendant.'

In Carter the Supreme Court of California, en banc, held prejudicially erroneous the admission of evidence that merely implied that the defendant refused to take a lie detector test. In rejecting the State's argument that refusal to take a lie detector test revealed consciousness of guilt, the court pointed out that lie detector tests have not yet achieved enough reliability to justify the admission of their results. At p. 674 the court said: 'It therefore follows that a suspect's willingness or unwillingness to take such a test is likewise without enough probative value to justify its admission. The suspect may refuse to take the test, not because he fears that it will reveal consciousness of guilt, but because it may record as a lie what is in fact the truth.'

In Bowen the court said that testimony concerning the accused's refusal to take a lie detector test was 'constitutionally impermissible' and rejected an argument that the error was harmless because the trial court had instructed the jury to disregard the testimony. In Britt the court held that the admission of evidence of the defendant's refusal to take a lie detector test was prejudicially erroneous, even though the trial court instructed the jury to disregard it.

In Hegel, the court, in holding that defendant's refusal to take a lie detector test should not have been revealed to the jury, referred to 'the manifest weight of the type of testimony erroneously admitted.'

In one case, Meyer v. Commonwealth, 472 S.W.2d 479 (Ky.App.1971), the court held improper the admission of evidence of the defendant's refusal to take a lie detector test but also held that there was other evidence of defendant's guilt, including his own confession, which was so 'overwhelming and conclusive' that reference to his refusal was harmless. In Commonwealth v. Williams, 224 Pa.Super. 298, 307 A.2d 289 (1973) a witness for the state referred to defendant's refusal to take a lie detector test. There was no objection made in the trial court, and the appellate court, although recognizing that the evidence was inadmissible, refused to treat it as plain error.

Consideration of the foregoing authorities makes it evident that testimony or prosecutorial comment to the effect that the accused was unwilling to undergo a lie detector test is highly prejudicial. Such was the ruling in some instances where the defendant made no objection to the testimony and in others where the jury was specifically instructed to disregard it. In the case at bar the defendant made extensive objections and of course the evidence was received without limitation upon its effect. The state has not cited to this court any authority holding that it was proper to admit evidence of a defendant's...