State v. Refuge

• Decision Date: 11 December 1972
• Docket Number: No. 51905,51905
• Citation: 270 So.2d 842,264 La. 135
• Parties: STATE of Louisiana, Appellee, v. James REFUGE, Appellant.
• Court: Louisiana Supreme Court

Page 842

270 So.2d 842

STATE of Louisiana, Appellee, v. James REFUGE, Appellant.

No. 51905.

Supreme Court of Louisiana.

Dec. 11, 1972.

Walter E. Doane, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant Refuge appeals his conviction of murder, La.R.S. 14:30, and sentence to death.

After this appeal was taken, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which holds that the imposition of the death penalty under statutes similar to Louisiana's constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Accordingly, in instances such as the present, we will, in the event of an affirmance of the conviction, remand the case to the trial court, with instructions to the judge to sentence the defendant to life imprisonment. State v. Gary Don Franklin, 263 La. 344, 268 So.2d 249.

Contentions of Error

Thirty-two bills of exceptions were reserved and perfected. However, twelve of them (on voir dire examination as to juror's feelings toward capital punishment) are expressly abandoned on appeal as now moot (and we further find no error was committed), since capital punishment is no longer an issue. At least four others, concerning evidentiary rulings, are not urged upon appeal and, on examination, possess no merit.

The more serious of the remaining bills concern: (1) the denial of a motion to suppress a confession as involuntary, and its admission into evidence (Bill Nos. 4, 5, 6, 19, 29, and 30); and (2) questions as to whether a witness had taken a lie detector test (Bill Nos. 2 and 28).

(1) The Confession

The decedent was killed during an armed robbery on November 29, 1969. The accused was arrested on December 17 and brought back to New Orleans for questioning that same afternoon. He executed statements that he had received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and then at 8:25 PM gave a written statement admitting participation in the robbery but claiming that his companion Miller had fired the fatal shot. ¹

Refuge testified that he was punched and kicked by the detectives. He stated he complained to the prison doctor and to the magistrate. However, the officers testified that the confession was freely and voluntarily given, after the defendant had been informed of his right to remain silent and to have counsel, etc., as required by Miranda.

The prison doctor denied that any such complaint was made, at the time Refuge was afforded medical treatment for a minor stomach ailment on December 22nd and January 3rd. The prison booking clerk testified that Refuge had specifically denied any physical complaints at the time he was booked at 11:00 AM on December 18th, the morning after the alleged beating, and he stated there were no signs of bruises of scrap marks at that time.

We find no error in the trial court's finding that the confession was freely and voluntarily given and not the product of coercion. Such a factual determination by the trial judge, who is in the best position to determine credibility, will not be disturbed upon appeal unless clearly erroneous. State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

(Similarly without merit is the defendant's objection to the introduction of a subsequent verbal admission to the same effect made by the defendant Refuge to another police officer the next morning. Bill Nos. 22, 23, and 26. By it, Refuge again admitted being a participant in the robbery (as a lookout), but again claimed that his companion Miller had done the shooting. The officer's testimony that the admission was free and voluntary and given after Miranda warnings is uncontradicted. This predicate to admission of the testimony was first proven outside the presence of the jury, which was withdrawn for that purpose. Tr. 554--574, 608.)

(2) Questions as to Lie Detector Tests

Two bills were reserved, when the trial court permitted testimony as to whether lie detector tests had been given to a witness. The trial court felt that the questions were proper, because no further questions were asked as to the reuslt of the tests.

Although there is no Louisiana decision in point, the universal rule in American jurisdictions is that (at least in the absence of stipulation) the results of a lie detector test are inadmissible when offered by either party, either as substantive evidence or as relating to the credibility of a party or a witness. The essential reason is the lack of probative value and insufficient scientific reliability, as well as the possible unduly prejudicial effect upon lay triers of fact.

See: McCormick on Evidence, Section 207 (2d ed. 1972); Annotation, Physiological and psychological truth and deception tests, 23 A.L.R.2d 1306 (1952) and later cases supplementing it; 22A C.J.S. Criminal Law § 645(2); 32 C.J.S. Evidence § 588(4); 29 Am.Jur.2d 'Evidence', Section 831; and the numerous decisions from many jurisdictions cited in these sources. See also Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie-Detection, 70 Yale L.J. 694, 724--28 (1961). Cf., Roux v. New Orleans Police Department, 223 So.2d 905, 911 (La.App.4th Cir. 1969), cert. denied, 254 La. 815, 227 So.2d 148 (1969).

Moreover, because of the reasons for which the test itself is inadmissible, these same authorities summarize the uniform holdings to be that likewise inadmissible is the willingness or unwillingness of a witness or a party to submit to such examination, as is evidence that the test was administered. Such evidence is excluded as an attempt by indirection to evade the direct prohibition against lie-detection testimony for jury consideration, based upon the incompetency and unduly prejudicial effect of such testimony in judicial proceedings. See also Annotation, Propriety and prejudicial effect of comment or evidence as to accused's willingness to take lie detector test, 95 A.L.R.2d 819 (1964) and later cases supplementing it.

However, as there noted, if such evidence of this latter type is admitted, it may not necessarily be reversible error, depending upon whether the party was prejudiced by it.

The circumstances under which the issue arose in the present case are as follows:

The state called Miller as its witness. He had been charged along with the defendant Refuge with the murder and armed robbery in question. Miller had pleaded guilty to manslaughter and had been sentenced therefor. See Footnote 1 above. The defendant's confession had stated he and Miller participated in the armed robbery but that Miller had gone into the store and done the shooting. Miller's confession admitted that he and Refuge had participated in the armed robbery, but stated that Refuge had done the actual shooting.

On the stand, for the first time, Miller denied that Refuge was present at the scene and had done the shooting. Miller stated he was standing outside the store and heard a shot fired by a person unknown to him. The state pleaded surprise, and proceeded to establish that he had made a prior contradictory statement. ²

Miller was subsequently asked by the state (after much examination as to the alleged reasons for the discrepancy in the statement), Tr. 479--80:

'Q. Do you recall at that time that a test was made on you?

'A. Yeah, you gave me a test.

'Q. What kind of test was given to you?

'A. Lie Detector test.

'Q. Who gave this test to you? Do you remember?

'BY (DEFENSE COUNSEL):

I object to anything about a lie detector test, your honor. These things are not admissible in court.

'BY (THE STATE):

I have this man under cross-examination. His veracity is at stake and I intend to call witnesses.

'BY THE COURT:

The results of a polygraph test are not admissible in evidence.

'BY (THE STATE):

I'm not asking the results.

'BY (DEFENSE COUNSEL):

What about the inference though? How can you stop the inference when you're talking about polygraphs.

'BY THE COURT:

Objection overruled. Let's proceed a little further.

'BY (DEFENSE COUNSEL):

In an excess of caution, we reserve a bill, making the question, the testimony, the objection and the court's ruling part of the bill.'

No further reference was made in Miller's testimony to the polygraph test, although subsequently a police officer was permitted to testify that Miller had taken the test (Bill of Exception No. 28), but not as to the results of it.

In its per curiam, the trial court explained its ruling as follows:

'It has been held in many courts that the mere fact the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised. Kaminski v. State, 63 So.2d 339, Fla.; Johnson v. State, 166 So.2d 798, 805, Fla.App.; People v. Parrella, 158 Cal.App.2d 140, 322 P.2d 83, Cal.

'The State's question and the witness' answer were not prejudicial in any form or manner. A mere reference to the test was made. No mention as to its result was referred to.'

The trial court was in error in its ruling, and the decisions cited do not support it.

Kaminski v. State, 63 So.2d 339 (Fla.Sup.Ct.1953) is, in fact, leading authority to the contrary. There, the Supreme Court of Florida reversed a conviction because the prosecuting witness, whose credibility had been attacked on cross-examination, was asked on re-direct whether he had taken a lie detector test. The court overruled the objection, and the witness was permitted to testify merely that he had taken such a test, with no testimony as to its result.

In reversing, the court stated, 63 So.2d 340--341:

'When the trial judge allowed the evidence to be admitted, and sanctioned the submission by the statement he made, we are of the view that he committed as egregious an error as if he had admitted the...