Defendant was convicted of felony murder, first degree kidnapping and criminal conspiracy. The facts of the alleged homicide are set forth in the companion case of State v. Snider, 296 Or 168, 674 P2d 585 (1983). Defendant appealed and the Court of Appeals affirmed per curiam, stating:
"One of the state's principal witnesses was defendant's accomplice, Walker. Before the trial commenced and again during Walker's testimony, defendant's attorney sought rulings from the court that no mention could be made of the fact that Walker was required to take a polygraph examination as a condition of his plea agreement with the state and that defendant could impeach Walker on the basis of the plea agreement without opening the door to the state's introduction of the polygraph condition as rehabilitation evidence. The court indicated that it was inclined to admit evidence of the polygraph.
"On cross-examination of the accomplice, defendant declined to ask him about the plea agreement. Had he done so, and had the polygraph condition of the agreement then been received, defendant would have had the opportunity to argue on appeal that the admission of that evidence was error. State v. Middleton, 61 Or App 680, 658 P2d 555 (1983). Although the court indicated how it would rule, it was never actually called upon to make a ruling. There is no error requiring reversal." State v. Foster, 62 Or App 298, 660 P2d 200 (1983).
The first issue we address in this case is whether defense counsel adequately protected his client's record in objecting to evidence of a condition in a plea agreement that the state's witness would take and pass a polygraph examination. The Court of Appeals said that the record was not adequately protected. We respectfully disagree. The following took place during pre-trial conference:
"[DEFENSE COUNSEL]: * * * I would present to the Court a copy of the agreement that the State of Oregon has with Terry Walker, the codefendant, Terry Walker, who's agreed to testify for the State now.
"Part of that -- lie detector -- part of that agreement is that Mr. Walker will submit to a lie detector to assure the D.A. that he will be telling the truth.
"What I'm requesting that I want the Court to do is allow cross-examination about the fact that he has an agreement with the D.A.'s office and to bring out the facts of what the agreement are. We would -- there would be no mention of the lie detector test, at all, and further, that Mr. Walker, if he mentions the words 'lie detector' anywhere in his testimony it will be a mistrial for the reason, Sixth Amendment right to confront a witness.
"Now, what is -- just a vital part of confronting a witness, anyway, to show that the witness has an agreement with the State of Oregon. That's a reason for Mr. Walker -- and the jury should be apprised of that.
"Also, I think, in the way of confrontation, I have a right to cross examine to the hilt, without the fear that he would blurt out, 'But I passed a lie detector on that point.'
"So, taking those rights in mind we get to the thing and say does the jury have a right to know about the lie detector? Well, the case law -- they don't have a right to the lie detector and the results of a lie detector test. The only case I have that is right on point is State v. Herrera, the one that was retried and the appeal from that, 49 Or App 1075, [621 P2d 1209 (1980),rev den 290 Or 652 (1981]. That exact thing happened. The State's main witness, I was cross examining and getting some points and then he talks -- 'But, I took a lie detector and passed.'
"The Court on page 1081, says it wasn't reversible because the Court instructed and cured the error, but the point is you don't go and let possible error in and then try to cure it at a later date.
"* * *
"That was -- this would allow the State to do is, by their own device, prevent effective cross examination. In other words, anytime they have a witness they want to make a deal with, and any time they have a witness that they think might be subject to cross examination then they say that if you agree to a lie detector test with us, and then once the agreement is made we can't ask about any agreement with the witness because it will come out.
"There's going to be both Terry's testimony -- my position is this, for the defendant. We would rather have no mention of any agreement with the State and no mention of the lie detector test and go ahead and appeal the rest of it if we get an adverse ruling. If they didn't find that Terry Walker has agreed to take a lie detector test regarding that, he is going to be so bolstered, his testimony, that they are going to believe him no matter what. And that will be using inadmissible evidence to do that. That is our position.
"* * *
"[PROSECUTOR]: I think the situation is properly analyzed in this fashion, that the State has signed an agreement with Terry Walker. If [defense counsel] gets into the agreement on what the facts are of this agreement or what the contents of the agreement are then * * * [t]he agreement itself has to be introduced and the State will be seeking to introduce it.
"Now, as for the results of the polygraph, I think that's a different issue, and as far as introducing the results of any polygraph that he has taken or may take, I think that will probably be barred by the statute.
"I don't have any particular quarrel with his request that Terry Walker be advised not to say, 'I've taken a polygraph and passed.' * * *
"* * *
"[DEFENSE COUNSEL:] If the lie detector is going to come with his deal with the State, if I -- I can't cross examine on that point, he's not been allowed to confront the witness as he's supposed -- to turn it around, it kind of -- do you think we would have a right -- maybe we do -- Mr. [prosecutor], after this trial is over, if Mr. Foster is convicted, and Terry Walker takes the lie detector -- and in addition to that there is a new trial if he flunks, and Mr. [prosecutor], but Foster is not a party to the agreement, he can't take advantage of it.
"* * *
"* * * There's no reason that Walker can't tell what his deal is, with the Court leaving out the lie detector test. Otherwise, Mr. Foster has done nothing wrong but he is deprived of that cross examination."
Up to this point in the pre-trial colloquy, the defendant had requested the court to allow cross-examination about the fact that the witness had an agreement with the prosecution for a reduced charge and had moved to exclude any reference to a polygraph examination. Everyone, the prosecutor, the defense counsel and the trial judge, agreed the results of the polygraph would be inadmissible. The judge made no other specific ruling.
Later on in the pre-trial hearing, prior to opening statements, the following took place:
"THE COURT: Okay. First, in the way of pretrial rulings, [defense counsel] asked me to make a ruling on the admissibility of the lie detector test requirement involved in the negotiations with Terry Walker.
"* * *
"I'll notify Terry Walker, and his attorney's here at this time, to make sure that he doesn't discuss this lie detector test. I'll take him actually on the stand before testifying, outside the presence of the jury. If for some reason he calls time out, I'll excuse the jury, but he's not to mention it in his testimony.
"* * * I think it's premature for me to be ruling at this time what will not be allowed. At the time, if [defense counsel] begins cross examination as to the agreement, I will say this, [defense counsel], I'll give you an indication that I think if you get into this I will make, allow the State to get into the total agreement.
"[DEFENSE COUNSEL]: I think we need a ruling before it comes up. We've got opening statements. From the very beginning my approach in defending Mr. Foster, if I can get into this agreement without the lie detector test -- dirty Terry Walker has an agreement with the State.
"If your ruling -- as I said before, will stay completely away from that. I will go to any length to stay away from the lie detector test.
"THE COURT: I'm inclined to -- if you get into the State's agreement, the State has a right to put on the evidence of what the lie detector test results are, what the total agreement is."
At this stage of the pre-trial proceeding, the court was still tentative and had made no ruling defendant can claim as error.
After defendant's cross-examination of Terry Walker and a noon recess, the following occurred:
"[DEFENSE COUNSEL]: * * * One thing I would -- with regard to Mr. Walker, just so we keep the record clear, I would ask if the Court would reconsider on cross examination about his deal with the D.A.'s office. If the Court would reconsider its ruling, without letting in the lie detector test.
"THE COURT: As I said, you're asking me to make a premature determination. I'm inclined to, if you get into the agreement, inclined to let in the lie detector portion, to let that get in.
"[DEFENSE COUNSEL]: Why is that premature at this point?
"THE COURT: I don't know what questions you're going to be asking. If we get --
"[DEFENSE COUNSEL]: I will just stay with it for an offer of proof. If I were to say to Mr. Walker, isn't it true that you have an agreement with the District Attorney's office, you're ruling that the entire agreement comes in?
"THE COURT: That's correct. That would include the results of any lie...
