State v. Green
| Citation | 271 Or. 153,531 P.2d 245 |
| Parties | , 92 A.L.R.3d 1301 STATE of Oregon, Respondent, v. Roger Lynn GREEN, Petitioner. |
| Decision Date | 30 January 1975 |
| Court | Supreme Court of Oregon |
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for petitioner.
Robert E. Brasch, Dist. Atty., Coquille, argued the cause and filed the brief for respondent.
Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON and SLOPER, JJ.
Defendant was convicted of murder for the shooting of two girls in Coos County, in violation of ORS 163.115. In addition to a plea of not guilty, defendant contended that he was suffering from 'extreme mental or emotional disturbance' at the time of the shootings, so as to reduce any crime from murder to manslaughter by reason of ORS 163.125. 1
The primary error assigned by defendant on appeal to the Court of Appeals was that the trial court erred in overruling defendant's objections to the offering by the state of 'polygraph evidence,' including not only the fact that defendant had taken a polygraph, or 'lie detector,' test prior to making a confession offered in evidence by the state, but also the results of that test and details of the test, including questions asked during that examination. The Court of Appeals affirmed the conviction, Or.App., 99 Adv.Sh. 1132, 525 P.2d 205 (1974). We granted a petition for review because of the importance of this subject.
The facts.
It is not necessary to state all of the detailed facts of this sordid crime. The bodies of the two teen-age girls were found near a logging road in a wooded area near Coquille, each killed with a single .22 caliber rifle bullet. Their clothes had been removed and were found at a garbage dump some distance away.
Upon receiving anonymous information that defendant had been seen in that area the state police officers went to see him and he gave them an account of his activities on that day. In discussions with defendant the officers asked if he would be willing to take a polygraph test, to which he agreed. A test was then given to him by a deputy sheriff, after which he was allowed to leave.
The next day a polygraph expert from the state police arrived and defendant agreed to take a second polygraph test. At the conclusion of that test that officer told defendant that he thought that the defendant was lying and needed help. Defendant then broke down and cried and confessed that he had killed the girls. His confession was then recorded, after which it was transcribed and signed by the defendant, all in the presence of several witnesses. After the confession defendant went with the officers to the scene of the crime, where he assisted in its re-enactment. At that time he again admitted that he was 'the one' who shot the two girls.
On various subsequent occasions defendant made other admissions to various officers and other persons in which he stated his version of additional details of the crime, including his reasons for shooting the girls. According to defendant's statements, he had encountered the two girls in a park. They wanted him to buy them some beer, which he did. They then wanted him to take them to a place where they could 'skinny dip,' which he did. The girls then, according to defendant, rubbed their bodies against him and offered him sex if he would get them some 'dope.' He then became angry and frustrated, but refused to do so. The three then got into his pickup truck and drove away. One of the girls then saw his .22 rifle in his truck and wanted to do some target shooting. After some target shooting, according to defendant, the girls taunted him for refusing to get them some 'dope,' told him 'no dope, no sex' and called him a 'red neck,' among other things. He then shot them. Later, he took off their clothes 'to make it look like rape' and took the clothes to the dump.
In his original confession defendant said that he 'used to lose his temper a lot.' Shortly after making his confession, defendant blamed his father for what he did, saying that his father had mistreated him and had called him names; that the girls called him names and talked to him 'the way my father used to talk to me'; that his father then 'got to him' and that was his explanation for shooting the girls.
Later, defendant explained his reasons for shooting the girls on the basis that he had become sexually aroused, frustrated and angry by the conduct of the girls. Previously, however, defendant stated that he did not recall being angry; that there had been no argument or anything that provoked him into shooting the girls; that he had not been sexually aroused by them; and that they had not 'propositioned' him.
The preliminary hearing.
In State v. Brewton, 238 Or. 590, 600--603, 395 P.2d 874 (1964), this court adopted the so-called 'Massachusetts rule' relating to the procedure to be followed for proof that a confession by a defendant in a criminal case was given voluntarily. For the purpose of satisfying the requirements of that rule, a preliminary hearing was held in advance of trial, rather than to interrupt the trial before the jury by 'in camera' proceedings. The purpose of that hearing was to determine whether defendant's confession was given voluntarily so as to be admissible in evidence at the trial, subject to the further determination by the jury whether the confession was given freely and voluntarily.
At that hearing, as well as at the trial itself, the district attorney proceeded upon the assumption that under Brewton he had both the right and the duty to offer in evidence 'the totality of the circumstances surrounding an accused's decision to confess his criminal conduct,' and that this included not only the fact that defendant had taken a polygraph test immediately prior to his confession, but many of the details of both polygraph tests, including specific questions asked by the experts conducting the tests and defendant's answers to these questions, as well as statements by the experts to the defendant that his reactions to certain questions indicated that he was lying. At that hearing the district attorney also offered in evidence testimony relating to most, if not all, of the numerous conversations between the defendant and various police officers and other persons covering a period of several weeks, including various admissions and other statements by defendant both before and after his formal confession. 2
As a result, the preliminary hearing, which began on August 14, 1973, took six days, extending over a period of several weeks. The state offered 18 witnesses, several of whom were recalled on subsequent dates. The hearing was not concluded until October 19, 1973.
At the conclusion of that hearing defendant's counsel informed the court that they would object at the trial to the admission of both the fact that polygraph tests had been taken by defendant before he confessed and also the results of such tests. The trial judge then ruled that the fact that polygraph tests had been taken could be shown by the state at the trial, but not the results of the tests. He also ruled that the state would not be permitted to show 'the actual tapes that were taken' during the polygraph tests, but that the defense could do so if it desired.
The trial.
The first witness offered by the state was a state police officer who testified that in the course of his investigation of the killings he asked defendant if he would submit to a polygraph test. Defendant's counsel renewed his objections upon the ground that evidence of polygraph tests is not admissible. The trial judge then ruled again that the fact that defendant had submitted to a polygraph test could be shown as an 'important circumstance' of the confession, but that he was 'not going to permit the polygraph test or any bolstering of the officer's testimony based upon the polygraph results.' Defendant asked for and was granted a continuing objection.
The state's attorney, however, then proceeded to offer in evidence the tape of the recorded proceedings during the first polygraph examination, including the explanation to defendant of the polygraph equipment by the officer conducting the examination; his instructions to defendant at the beginning of the examination; specific questions asked, including such questions as whether defendant knew whether the girls were shot with a rifle, whether he knew that their clothes had been found at the dump, whether he knew who had killed the girls and whether he did so; and defendant's 'no' answers to each of these questions. That tape also included statements by the officer to defendant that the 'graph' showed that his blood pressure 'really shot up' in answering some of these questions.
The state then offered testimony that the next day defendant agreed to take a second polygraph test and that after that test defendant made a confession, which was first 'taped' and then transcribed and signed by him. The transcript of that confession was then read to the jury.
The two officers who conducted the two polygraph examinations also testified, among other things, that the purpose of the tests was to 'determine whether there was any deception' and, if so, to get defendant to confess; that at the conclusion of the second examination the officer told defendant that he felt that defendant was lying and that defendant 'needed help,' after which defendant broke down and cried, saying that he had 'needed help for a long time'; and that he then confessed. In the course of that testimony the state was also permitted to offer in evidence some of the questions asked during the second polygraph examination, including a question whether defendant had seen the girls naked, which defendant denied at that time, but which, in the opinion of the officer conducting the polygraph examination, was a 'key' question.
At that point, after defendant's counsel had made a further objection,...
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