State v. Ross

• Decision Date: 07 June 1972
• Docket Number: No. 475--III,475--III
• Citation: 53 A.L.R.3d 997,497 P.2d 1343,7 Wn.App. 62
• Parties: , 53 A.L.R.3d 997 STATE of Washington, Respondent, v. Richard E. ROSS, Appellant.
• Court: Washington Court of Appeals

Page 62

7 Wn.App. 62

497 P.2d 1343, 53 A.L.R.3d 997

STATE of Washington, Respondent, v. Richard E. ROSS, Appellant.

No. 475--III.

Court of Appeals of Washington, Division 3.

June 7, 1972.

Rehearing Denied July 12, 1972.

Review Denied Aug. 18, 1972.

Tim Weaver, of Hovis, Cockrill & Roy, Yakima, for appellant.

Lincoln E. Shropshire, Pros. Atty., Robert N. Hackett, Jr., Deputy Pros. Atty., Yakima, for respondent.

EVANS, Judge.

Defendant Richard E. Ross was charged by information with two counts of second-degree assault with a knife. The first count charged him with assault upon one Loy Ray Markle, and the second count charged him with assault upon one Josephine Wait. In a trial to the court without a jury Ross was found guilty upon the first count.

The second count was dismissed, based upon a finding that Josephine Wait was cut by a knife wielded by the defendant, but that it was not done intentionally. Defendant appeals from judgment and sentence entered on count 1.

Defendant's assignments of error 1, 3 and 4 constitute a factual appeal from the findings entered by the trial court. An examination of the record reveals substantial evidence, supplied by three eye witnesses to the incident and two eye witnesses to the actions and statements of the defendant Ross immediately following the incident, which support the trial court's findings and conclusions.

It is not the function of the appellate court to reevaluate the credibility of witnesses. As disclosed by its memorandum opinion and its findings of fact, the trial court carefully reviewed and evaluated the evidence. Those findings support the court's conclusions of law and will not be disturbed.

Defendant next contends the trial court erred in allowing the prosecuting attorney to attempt to impeach its own witness, Anna Ramirez. We do not agree.

Anna Ramirez had maintained a close personal relationship with the defendant Ross for several years. It was she who made the police call which resulted in his arrest, and she was present with several other witnesses when Ross was pointed out to the police as the 'man they were after.' However, when called as a state's witness she testified that she, not Ross, accidentally stabbed Markle with a knife which she had previously obtained from the kitchen to protect herself from Ross, and that Ross was not in the kitchen before the stabbing. The prosecuting attorney claimed surprise and asked her if she had not told him before trial that Ross was in the kitchen shortly before the stabbing. Mrs. Ramirez answered that she did not recall. When asked if she had not previously stated that Ross had a shiny object in his hand before the stabbing she denied making such a statement. The state did not offer any impeaching testimony. We find nothing in the record to suggest the trial court's finding that Anna Ramirez committed Defendant also assigns error to the admission of results of a polygraph test which was based upon a stipulation that the results, whether favorable or unfavorable, would be admissible in evidence. Such a stipulation ¹ was entered into Mr. Nicholson: Your Honor, for the sake of time, the defense will stipulate that Mr. Ross and counsel entered Without objection, Sgt. Nesary then testified to his training and experience as a polygraph operator and that the test was conducted under proper conditions. The questions which had previously been agreed upon were: (1) Do you know for sure who intentionally cut Markle? (2) Did you intentionally cut Markle? (3) Did you intentionally swing a knife at Josephine Wait? and (4) Before Markle was cut, did you have a knife in your hand? Sgt. Nesary testified that he received a deceptive reaction to questions 1, 2 and 4, which related to the assault involving Markle, and that Ross's answer of 'No' to the third question, relating to the assault charge upon Josephine Wait, was not deceptive. In his opinion, Ross was not telling the complete truth in answering questions 1, 2 and 4. Sgt. Nesary was cross-examined at length as to his qualifications and training, the conditions under which the test was administered, and the limitations of and possibility of error in the technique of polygraph interrogation.

perjury was based upon the prosecuting attorney's questions. Independent of these questions, there was substantial evidence that the testimony of Anna Ramirez was a fabrication, motivated by a desire to help her boy friend, Ross. Since the trial was to a court and not to a jury we find no reversible error resulting from the questions asked by the prosecuting attorney by the defendant[497 P.2d 1346] Ross, his attorney, and the prosecuting attorney. Pursuant to that stipulation a test was conducted by Sgt. Nesary of the Yakima City Police Department. In a pretrial conference with the defendant Ross, his attorney, the prosecuting attorney, and Mr. Nesary present, four questions to be asked of defendant Ross were formulated and agreed upon. When Sgt. Nesary was called to the stand as a witness the following transpired into a stipulation with Mr. Hackett, wherein Ross volunteered to take a polygraph and did take it with Sgt. Nesary.

The court found that the polygraph machine was in good working order, that Sgt. Nesary was an experienced operator of a polygraph, and that accurate readings of the results of such a test can be obtained in about 90 per cent of all tests.

Our Supreme Court has had occasion to comment on the admissibility of the results of a polygraph test in several cases.

In State v. Rowe, 77 Wash.2d 955, 468 P.2d 1000 (1970) the defendant, unrepresented by counsel, requested a polygraph test. The examination was given and the court points out that there was no stipulation concerning admissibility of the results. The report of the test was inconclusive. Defendant offered evidence of his willingness to take the test in order to show a consciousness of innocence. In holding the trial court was correct in rejecting defendant's offer, the Supreme Court stated, at 958, 468 P.2d at 1003 Since it is generally held that polygraph tests are not judicially acceptable, 22A C.J.S. Criminal Law § 645(2) (1961), it is obvious that a defendant should not be permitted to introduce evidence of his professed willingness to take such a test. Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956); State v. Chang, 46 Hawaii 22, 374 P.2d 5 (1962). At best such an offer is a self-serving act or declaration which is made without any possible risk. If the offer is accepted and the test given, the results cannot be used in evidence whether they were favorable or unfavorable. Commonwealth v. Saunders, Supra; State v. LaRocca, 81 N.J.Super. 40, 194 A.2d 578 (1963). In short, a defendant has everything to gain and nothing to lose by making the offer, so the conduct underlying the so-called inference of innocence can well be feigned, artificial and wholly unreliable.

Thus, even if the defendant was effectively precluded from raising the issue by fear that the test results might be disclosed, the trial court committed no error. The defendant's offer of evidence was patently self-serving and thus inadmissible at the outset.

Seattle Police Officers' Guild v. Seattle, 80 Wash.2d 307, 494 P.2d 485 (1972) involved a departmental administrative investigation of an alleged pay-off system in the police department. During the course of inquiry the acting chief of police proposed to require certain officers to submit to a polygraph examination under threat of dismissal if they refused to cooperate. This proposal was based upon a police department general order which required the cooperation of officers in internal departmental investigations.

As we read the majority opinion, it attributed some probative value to a polygraph test when it stated, at page 320, 494 P.2d at page 463:

if, in the exercise of prudent judgment, the investigating authority determines it reasonably necessary to utilize the polygraph examination as an investigatory tool to test the dependability of prior answers of suspected officers to questions specifically, narrowly, and directly related to the performance of their official duties, then, such investigating authority may properly request such officers to submit to a polygraph test under pain of dismissal for refusal.

However, as to the admissibility of the polygraph test in any subsequent criminal proceedings, the court continued, at page 320, 494 P.2d at page 463:

Bearing in mind that the reasonableness of an investigating authority's request, under varying circumstances, can be subjected to judicial scrutiny and abuses of discretion thereby curbed, coupled with the fact that, in any event, the results of a polygraph test and a subject's willingness or unwillingness to take the test cannot be admitted into evidence in subsequent criminal proceedings, we see no constitutional or legal barrier to the conclusion we have reached.

In State v. Stiltner, 80 Wash.2d 47, 491 P.2d 1043 (1971), as in State v. Rowe, Supra, the court again indicated that, generally speaking, polygraph tests are not yet judicially acceptable, but at the same time indicated a distinction may be drawn when there is a stipulation that the...