State v. Sheehan
| Decision Date | 08 October 1979 |
| Docket Number | No. C,C |
| Parties | STATE of Oregon, Respondent, v. Karl Jose SHEEHAN, Appellant. 78-09-15670; CA 12801. |
| Court | Oregon Court of Appeals |
Marianne O. Bottini, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and LEE, GILLETTE and CAMPBELL, JJ.
Defendant appeals his conviction of burglary in the second degree, ORS 164.215, robbery in the third degree, ORS 164.395, and assault in the fourth degree, ORS 163.160. The sole issue we address is the admissibility of inculpatory statements made during an interview prior to a polygraph examination. 1 We reverse and remand.
Prior to trial defendant agreed to submit to a polygraph examination to be administered by Officer Lattin of the Oregon State Police. Defendant entered into a stipulation as to the results of the examination, which provides in part:
This stipulation was signed by defendant, his attorney, and the deputy district attorney. The stipulation was accompanied by a Certificate of Understanding, signed by defendant, which contains the following provision:
Prior to the interview, Officer Lattin advised defendant: that he had the right to remain silent; that he had the right to refuse to take the polygraph examination; that anything he said could be used against him in a court of law; that he had the right to a lawyer and to have that lawyer present with him during questioning; that if he could not afford to hire a lawyer, one would be appointed to represent him at no expense before questioning if he so desired; that if he decided to give a statement, he could stop talking at any time he wished; and that if he decided to take the polygraph examination, he could terminate the examination any time he wished.
During the interview preceding the use of the machine, defendant made inculpatory statements. Defendant proceeded to complete the polygraph examination, the results of which were determined to be inconclusive.
At the pretrial hearing on the admissibility of the pretest statements in question, Officer Lattin testified that the pretest interview, which is used to help construct the polygraph examination, is an "integral part" of the examination. Elaborating, he stated:
"In terms of the polygraph examination in its totality, it's my opinion that a polygraph examination begins when an individual walks into the room and ends when the individual walks out of the room."
He noted that suspects often change their story from that previously given, and explained that the defendant was informed before the interview that he was being tested on what he believed to be true at the date of the test. He added that "a good, qualified, accurate or reliable examination needs a pre-test." The trial court also heard defendant testify that he took the polygraph examination voluntarily. The court ruled that the statements were admissible, but that no mention would be made at the trial of the fact that there was no polygraph examination or of the factual context in which the statements were made. At trial, Officer Lattin testified to defendant's statements in accordance with the trial court's order.
Defendant argues that under State v. Thompson, 30 Or.App. 379, 567 P.2d 132 Rev. den. (1977), the statements in question were inadmissible. 2 In Thompson, the defendant had agreed under a protective court order to take a polygraph examination, the results of which would be disclosed only to defense attorneys. Prior to the interview, the examiner told the defendant that anything he said could be used against him in a court of law. The defendant then made admissions tantamount to a confession of guilt. Defendant was never connected to the polygraph machine. Those statements were admitted at trial over defendant's objection. We stated:
30 Or.App. at 383, 567 P.2d at 134.
The admissibility of the statements depends upon whether they were made pursuant to stipulation that they would be admissible in evidence. In contrast to the situation in Thompson, defendant here made the incriminating statements with the understanding that they would be admissible at trial only if the results of the test were conclusive, either as to defendant's truthfulness or lack of it. This distinction alone, however, is not decisive. We observe a fatal ambiguity in the stipulation entered into by defendant. The provision that in the event of inconclusive results, "neither side will mention the polygraph examination during trial" is reasonably subject to at least two differing interpretations by a person of ordinary understanding: (1) there will be no mention at trial of the fact of the examination; and (2) there will be no mention of the fact of the examination or of anything that transpired as part of it.
In Thompson, as in the present case, defendant argued that the "polygraph examination" included the pretest interview. The same polygraph examiner, Officer Lattin, conducted the interview in each case. Lattin testified in Thompson as here that the pretest interview was an integral part of the polygraph examination as a whole, and that the pretest interview was fundamental because the examination would not be reliable without it. He further testified that, although defendant was never connected to the polygraph machine, it was his opinion that he conducted a portion of the polygraph examination. In Thompson, Lieutenant Riegel of the Oregon State Police, a qualified polygraph examiner, also testified. He stated his opinion that the pretest interview is part of the examination and that the examination begins the moment he begins talking to the person to be interviewed.
Thus, in Thompson as here we were presented with the issue of whether the "polygraph examination" included the pretest interview. Although the Thompson opinion did not expressly address the issue, implicit in that case's holding that the statements were inadmissible is the conclusion that those statements were a part of the polygraph examination.
From defendant's testimony at the pretrial hearing, it appears likely he was led to believe that in the event the test results were inconclusive no statements he made after he entered the examination room would be admissible at trial. 3
Where a defendant has agreed to waive his right to remain silent under specific conditions, he is entitled to have those conditions scrupulously adhered to. We conclude that the trial court erred in admitting evidence of the statements in question.
Reversed and remanded for new trial.
In State v. Thompson, 30 Or.App. 379, 567 P.2d 132, Rev. den. (1977), we held that certain statements made by a criminal defendant to a polygraph examiner during a pretest interview were inadmissible. In doing so, however, we were at pains to limit our holding to " * * * statements obtained under the circumstances shown in this case". Id., at 383, 567 P.2d at 134. Today the majority applies Thompson to a case far different. I wouldn't.
In criminal trials, the difficulty with polygraph evidence stems from two sources.
First: When an accused makes statements or responds to questions while connected to the machine the operator makes a conclusion that his answers are deceptive, not deceptive (i. e., truthful) or that neither conclusion can be made. Courts have generally been reluctant to admit the results of the examination because of reliability and policy considerations. Consequently, the test results have been admissible only if both sides so stipulate.
The second source of difficulty is in the instance where the results of a polygraph are not admitted but the polygraph is mentioned at trial. The jury, from the mention of the polygraph, may infer the defendant is guilty because he refused to submit to the test and prove his innocence.
These are the only two problems that relate to a polygraph examination, and neither problem arose in this case. The results of the examination were not put in evidence and polygraph was not mentioned in the trial.
In my view,...
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State v. Wardrip, 80-6692-C
...of the testimony could not have changed the outcome of the trial and that, therefore, any error was harmless. In State v. Sheehan, 42 Or.App. 607, 614, 600 P.2d 971 (1979), we said that a defendant who waives his right to remain silent under specific conditions is entitled to have those con......