State v. McDavitt

• Decision Date: 18 December 1972
• Citation: 297 A.2d 849,62 N.J. 36
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Lonny McDAVITT, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 36

62 N.J. 36

297 A.2d 849

STATE of New Jersey, Plaintiff-Appellant, v. Lonny McDAVITT, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 6, 1972.

Decided Dec. 18, 1972.

Leonard N. Arnold, Asst. Prosecutor, for appellant (Michael R. Imbriani, Prosecutor of Somerset County, attorney).

Joseph D. Haggerty, Orange, for respondent (Frank Metro, Newark, attorney).

The opinion of the court was delivered by

SULLIVAN, P.J.A.D., Temporarily Assigned.

Defendant was found guilty, by jury verdict, of a violation of N.J.S.A. 2A:94--1 (breaking and entering with intent to steal). He was sentenced to an indeterminate term at the Youth Reception and Correction Center in Yardville. On appeal, the Appellate Division reversed the judgment of conviction in an opinion reported in 118 N.J.Super. 77, 286 A.2d 86 (1972). The Appellate Division held it was 'plain error' to have the jury consider evidence of the results of a polygraph test taken by defendant during trial. The test was administered to defendant and the results thereof admitted into evidence by virtue of a stipulation entered into by defendant and his attorney and the State. The test results indicated that defendant was not telling the truth when the denied his involvement in the particular breaking and entering. This Court granted the State's petition for certification. 60 N.J. 351, 289 A.2d 796 (1972).

On January 26, 1970 at approximately 9:30 P.M. the police of Bridgewater Township responded to a reported breaking and entering involving a private dwelling. They found a cellar window broken in the house and upon conducting a search of the premises found a man, later identified as Michael Wescott, hiding under a bed and another man, later identified as Frank McGinnis, hiding in the bedroom closet.

The men were arrested, advised of their constitutional rights, and taken to police headquarters. There McGinnis told the police that defendant Lonny McDavitt was also involved in the breaking and entering and had been acting as lookout while McGinnis and Wescott entered the house. He gave the police the following description of defendant and the clothing he was wearing: 'a white male wearing black trousers, a black ski jacket, work shoes, six feet four inches, heavy build, brown-blonde hair.' This information was received shortly after 10:00 P.M. and broadcast to all Somerset County police departments at 10:18 P.M. At 11:20 P.M. a teletype alarm was sent out for McDavitt who was apprehended in the Town of Dover, Morris County, around midnight of the same evening. When arrested, he was wearing clothing which closely matched the description given the police by McGinnis.

The only evidence implicating defendant in the crime came from McGinnis who had been jointly indicted with defendant, but pleaded guilty prior to trial and testified as a witness for the State. McGinnis had not yet been sentenced when he testified at defendant's trial that defendant had actually instigated the criminal activity, selected the house to be broken into, kicked in the cellar window, and was acting as lookout while McGinnis and Wescott entered the house.

Defendant took the stand in his own behalf. He denied involvement in or knowledge of the breaking and entering and asserted that he had not been in the company of McGinnis and Wescott any part of the day in question.

Wescott, who had previously pleaded guilty to a separate charge of breaking and entering and received a jail sentence, testified as a defense witness. His story was that only he and McGinnis were involved in the crime and that defendant was not with them that night.

Defendant's brother Lynn McDavitt, his mother LaVerne McDavitt, Mr. and Mrs. Anthony Tinc and William Strathem also testified in support of defendant's version of his whereabouts that evening.

The polygraph test incident which the Appellate Division found amounted to 'plainerror' came about as follows:

Detective James Ibach of the Bridgewater Township Police, a State's witness, had testified that in the early morning hours of January 27th, after word had been received of defendant's arrest in Dover, he and another officer went there with the arrest warrant, picked defendant up and brought him back to Bridgewater.

On cross-examination by defense counsel he was asked about the conversation he had with defendant while driving back from Dover. Specifically, counsel asked whether defendant told him 'that you could submit him to some sort of test.' The prosecutor's objection to the question was overruled and the detective answered that he did not recall any such offer. At a side bar conference the prosecutor again objected to this line of questioning and the court admonished defense counsel not to imply 'that it is a polygraph test or a lie detector test, and I think under the circumstances you should not try to pursue this any further.'

When defendant took the stand in his own defense he was asked by his attorney what he said when he arrived at the Bridgewater Police Headquarters after he had been brought there from Dover and learned, for the first time, the nature of the charge against him. His answer was '* * * I am trying to think of the detective's name whom I offered myself to take a polygraph test.' The prosecutor objected to any reference to a polygraph test at side bar but the trial court overruled the objection. Defendant then testified that upon arriving at Bridgewater Police Headquarters and learning of the charges against him, he offered to take a lie detector test 'to prove my innocence.'

On cross-examination the prosecutor asked defendant whether he would be 'willing to take a polygraph test today.' Defendant answered in the affirmative.

At this point the jury was excused and the prosecutor advised the court that if defendant passed the polygraph test the State would not oppose a motion for acquittal. However, if he failed the test, the jury was to be informed of the results of the test. Counsel for defendant replied: It is perfectly understandable and it is only fair.'

Defendant after having been advised by the court that he had an absolute right to refuse to submit to the test, withdrew his consent and asked that the trial proceed. The prosecutor then stated that the only inference that could now be had was that defendant 'is not innocent and the machine will show it.' He announced his intention be cross-examine defendant 'on this very point' in order to rebut any inference the jury might otherwise draw from defendant's testimony on direct examination that he had offered to take a lie detector test 'to prove my innocence.'

A recess was taken during which defendant conferred with his counsel. Following the conference, defendant told the court that he would submit to the test. He was advised by the court that if he took the test the results would be introduced in evidence and the polygraph examiner allowed to testify and give his opinion as to whether defendant was telling the truth. Defendant answered that he understood and was willing, on a completely voluntary basis, to take the test and have the results put before the jury as evidence.

The jury was recalled and told of the understanding that had been reached. The trial was adjourned and the test administered the following day. Defendant failed the test. Upon resumption of the trial, counsel for defendant immediately moved to exclude the test results from evidence on the grounds that some of the questions asked defendant on the test were improper, and that case law in New Jersey clearly bars the use of the results of polygraph tests in criminal trials. ¹

The trial court denied the motion holding that it would not permit defendant to repudiate the stipulation. As to the allegedly improper questions, the court noted that defense counsel would have the opportunity on cross-examination to explore the matter.

Following the completion of defendant's cross-examination and the presentation of the testimony of defendant's remaining witnesses, the State called as its witness Louis Jasmine, the polygraph operator who had administered the test to defendant.

Jasmine testified that he was the Assistant Chief Polygraphist of the New Jersey State Police. He related an extensive background in polygraph training and experience. There was no objection to his qualifications as an expert. Jasmine described in detail the equipment and procedures used in pre-testing and testing defendant and the nature of the questions asked. Three of the questions were directly relevant to defendant's involvement in the breaking and entering. Jasmine testified that defendant's negative answers to these questions were accompanied by physiological responses which 'indicated significant emotional disturbances which are indicative of deception.' Jasmine's opinion was that defendant was not telling the truth in the answers given. He said that while some test results can be inconclusive, in this particular case there was 'no room for any error.'

Preliminarily, we note that the trial court should have sustained the prosecutor's objection to any reference to a polygraph test. Proof that a defendant in a criminal trial either refused a lie detector test, or offered to submit to one, has been held to be not admissible in evidence. State v. Driver, 38 N.J. 255, 260--261, 183 A.2d 655 (1962); State v. Peetros, 45 N.J. 540, 545--546, 214 A.2d 2 (1965). This is the general rule. 29 Am.Jur.2d, Evidence, § 296, p. 341. Had defendant not been permitted to testify about his 'offer,' the ensuing difficulty would have been avoided. However, it was defendant who insisted on getting before the jury evidence that he had offered to take a lie detector test to prove his innocence. Once this was heard by the jury, its impact was obvious. A motion for a mistrial would have been futile since the trial court had ruled the evidence was admissible. The only way the prosecutor could negate the inference the jury would undoubtedly...