State v. Ikirt, CR-86-0201-PR

• Decision Date: 21 April 1987
• Docket Number: No. CR-86-0201-PR,CR-86-0201-PR
• Citation: 160 Ariz. 113,770 P.2d 1159
• Parties: STATE of Arizona, Appellee, v. Jeffrey Lynn IKIRT, Appellant.
• Court: Arizona Supreme Court

Page 1159

770 P.2d 1159

160 Ariz. 113

STATE of Arizona, Appellee, v. Jeffrey Lynn IKIRT, Appellant.

No. CR-86-0201-PR.

Supreme Court of Arizona, In Banc.

April 21, 1987.

Supplemental Opinion Jan. 17, 1989.

As Amended March 30, 1989.

Robert K. Corbin, Atty. Gen. By Bruce M. Ferg, Asst. Atty. Gen., Phoenix, for appellee.

Robert Arentz, Cochise County, Public Defender, Perry L. Hicks, former Cochise County Public Defender by Wallace R. Hoggatt, Deputy Cochise County Public Defender, Bisbee, for appellant.

HOLOHAN, Justice.

We granted the state's petition for review to decide whether the Court of Appeals erred in reversing the defendant's The facts necessary for the resolution of this case follow. Jeffrey Ikirt, former son-in-law of Peter Lozano, was charged with arson, burglary, and criminal damage in connection with the burning of the Lozano residence.

[160 Ariz. 114] convictions because the state produced testimony of a witness' failure to take a polygraph examination.

At trial, three experts testified for the state that the fire was the result of arson rather than accident. The state's case rested entirely upon circumstantial evidence against Ikirt, demonstrating that he had been involved in a bitter divorce and visitation battle with Lozano's daughter; that he had threatened the lives of his former wife and her parents; that he had hit Lozano during an argument; that he had earlier threatened to burn or destroy the house; that he did not deny guilt when his sister-in-law accused him of destroying the house; and that a truck resembling his was seen driving back and forth near the Lozano house with its lights off shortly before the fire was detected.

The Lozano house had been set afire sometime before 8:40 p.m. Ikirt presented evidence to support an alibi defense. His mother testified that he was at her home in Tombstone at 8:45 p.m. the evening of the fire. Michael Lennon, a friend of Ikirt's, testified that he had seen Ikirt in front of a Tombstone saloon that evening at about 9:00 p.m. for about five to ten minutes. Tombstone's then-deputy marshal testified that he had seen Jeff outside a bar sometime between 9:20 and 9:35 p.m. The owner of another bar testified that he had seen Ikirt in his bar around 10:00 or 10:30 p.m.

Lynn Curry, a state's witness, testified that after the fire on Memorial Day, 1984, Ikirt came into the restaurant where she worked and spoke with Michael Lennon and her husband-to-be, Jim Curry. Lynn testified that Ikirt said that he and Tommy Gilbert had set the fire, and that he needed Lennon and Curry to say that he was with them the night of the fire because he had used them as alibis when talking to sheriff's department detectives. Lynn's testimony was controverted by Lennon, who testified that the conversation related by Curry never took place. Lennon stated that Ikirt had never admitted setting a fire or hiring anyone to set it for him.

During his testimony, Lennon stated that a Detective Kellogg interviewed him at the hospital about a week and a half after the fire where he was recovering from a severe beating. Lennon testified as follows:

Q [Defense Counsel] Mr. Lennon, do you remember Mr. Kellogg indicating a particular interest to get information to convict Jeff Ikirt?

* * *

* * *

The Witness: Yes. He asked me if I knew who started the fire and he told me that he didn't want anybody else that was involved, if I knew, that he just wanted Jeff Ikirt; and if I would take a lie detector test for him.

I told him that I--

Mr. Behrens [Defense Counsel]: Okay.

Mr. Brew [Prosecutor]: Your honor, may we have a conference at the bench?

The Court: Yes. Come on.

The following dialogue took place at the bench conference:

Mr. Brew: This man refused to take a polygraph test. He's just indicated to the jury that he was asked to take the polygraph test and I think I'm entitled to get that in at this point.

The Court: Why are we going into all of this?

Mr. Behrens: I was ready to say "No further questions." I had alerted him not to mention the word "polygraph" or "lie detector."

The Court: Tony, keep pushing on these things and we're asking for trouble, I'm telling you.

Mr. Brew: I think I have to correct that impression. He's brought it in. I think I'm entitled to finish it off.

The Court: He refused to take it?

Mr. Brew: He originally said he would take it and then he didn't go.

The Court: Okay. I think we can--

Mr. Behrens: If we do that, we'll get into details such as he was in the hospital under medication.

Mr. Brew: Let him.

Mr. Behrens: He was suckered into signing a paper saying he would take it and he never intended to take it.

The Court: Well, let it all come in.

Then, during cross-examination, the following exchange occurred:

Q [By Mr. Brew] And at that time Mr. Kellogg asked you about a lie detector test, a polygraph?

A [By Mr. Lennon] Yes, sir.

Q And what did you tell him?

A He asked me to read this paper over carefully and his partner was filling out something on the typewriter and he asked me if I would take this test. He told me to read these papers over carefully.

I couldn't see the papers hardly at all. I had both my eyes almost closed shut. I told him I would and I signed the paper.

Q And you signed the paper.

A Yes, sir.

Q Okay. But you later changed your mind.

A Yes, sir. That was when his partner came to my home and told me: Are you ready to go? And I was babysitting that day and I told him, I said: No, I'm babysitting.

And he goes: I want to know yes or no are you going to go. That's all Mr. Kellogg wants to know.

And I told him: No. And he goes: Fine. That's all I need to know.

And he left.

Q So you didn't go.

A No.

Q You made arrangements to go and take the polygraph test on a particular date and you didn't go.

A No.

Q No, you hadn't made arrangements, or no, you didn't go?

A No, I did not go.

Defendant was convicted as charged and sentenced to presumptive sentences on all counts, to be served concurrently. On appeal, the Court of Appeals reversed and remanded for a new trial. State v. Ikirt, 2 CA-CR 4035 (Ariz.App.) (filed April 2, 1986). The court reversed because the trial judge improperly admitted evidence of Lennon's refusal to submit to a polygraph examination. The court stated that this was not a case of invited error by defense counsel eliciting the testimony from Lennon since counsel immediately interrupted the witness, and had previously instructed him not to mention the polygraph exam. The court stated that since reference to a polygraph test is inadmissible for any reason, it was error to allow the prosecutor to cross-examine Lennon in order to elaborate upon or explain Lennon's polygraph remark. The court concluded that there was obvious prejudice to the defendant, thereby mandating a new trial.

In Arizona, evidence of a polygraph test is generally inadmissible, and reference to such a test is improper. E.g., State v. Bowen, 104 Ariz. 138, 141, 449 P.2d 603, 606, cert. denied, 396 U.S. 912, 90 S.Ct. 229, 24 L.Ed.2d 188 (1969). Polygraph evidence is deemed inadmissible because it is unreliable and the trier of fact has a tendency to treat such evidence as conclusive on the issue of guilt. See State v. Valdez, 91 Ariz. 274, 278-79, 371 P.2d 894, 897-98 (1962). Generally, a defendant may not introduce evidence of his willingness to take a polygraph test; likewise, the state may not show defendant's refusal to submit to such a test. State v. Madsen, 125 Ariz. 346, 351, 609 P.2d 1046, 1051, cert. denied, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980).

If the parties stipulate to its use, however, polygraph evidence may be admitted. See State v. Marquez, 113 Ariz. 540, 544, 558 P.2d 692, 696 (1976). In addition, reference to polygraph evidence has been allowed where defense counsel opens the door to otherwise irrelevant or prejudicial evidence. See e.g., State v. Roberts, 144 Ariz. 572, 698 P.2d 1291 (App.1985). In Roberts, defense counsel deliberately attempted to elicit a response from defendant about a lie detector test. In the instant case, the witness's statement that he had been offered the opportunity to take a lie detector test was not responsive to the question asked by defense counsel, and thus this is not a true case of invited error.

We note, however, that during the bench conference the defense counsel did not object to the prosecutor's proposed subject for cross-examination of the witness. Defense counsel did protest during the conference that allowing the prosecutor to cross-examine the witness about a polygraph test would raise the issue that the witness had been in the hospital under medication when he was asked to take the test and that he was "suckered into" signing a statement that he would take the test. Nevertheless, we find that this does not constitute an objection to the prosecutor's request to inquire about the conversation concerning the lie detector test. The failure to object to evidence, testimony or argument waives these matters on appeal. To preserve an issue for appeal a party must state distinctly the matter to which the party objects and the grounds for the objection. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). By failing to make a timely objection, the appellant has waived the issue on appeal unless the matter is one of fundamental error. Id.

While we will review fundamental error even though it was not raised at trial, Miller v. Palmer, 143 Ariz. 84, 87, 691 P.2d 1112, 1115 (App.1984), we do not find fundamental error here. The prosecutor was not attempting to make an improper use of the witness' failure to take the polygraph test. His purpose was to correct any false impression which may have been left in the minds of the jurors after the remarks by the witness about the offer to take a lie detector test.

That portion of the memorandum decision of the Court of Appeals dealing with the issue presented for review is vacated. The judgment and...