State v. Sutherland

• Decision Date: 09 October 1980
• Docket Number: No. 46754,46754
• Citation: 617 P.2d 1010,94 Wn.2d 527
• Parties: STATE of Washington, Respondent, v. Scott G. SUTHERLAND, Petitioner.
• Court: Washington Supreme Court

Page 527

94 Wn.2d 527

617 P.2d 1010

STATE of Washington, Respondent, v. Scott G. SUTHERLAND, Petitioner.

No. 46754.

Supreme Court of Washington, En Banc.

Oct. 9, 1980.

John Henry Browne, Seattle, for petitioner.

Russ Juckett, Snohomish County Pros. Atty., James B. Roche, Deputy Pros. Atty., Everett, for respondent.

WRIGHT, J.

This is an appeal from a first-degree murder conviction. A discussion of the facts will be omitted because they are fully set out in the Court of Appeals opinion, State v. Sutherland, 24 Wash.App. 719, 604 P.2d 957 (1979), and because they are not relevant to the subject matter of this appeal.

Review was initially granted upon two issues; first, the reference to a polygraph test during the testimony of a witness and, second, the alleged failure of the prosecution to make available to the defense some purportedly relevant information. We find it necessary to order a new trial upon the first issue. There will be no discussion of the second issue. It is moot because the defense now has all the information.

In discussing the polygraph issue, we want to make it clear that nothing said herein is intended to discredit the polygraph as a tool in police investigations. We are concerned, instead, with its use in trial.

In this case, Brian Gjerde was the State's principal witness. He initially had been the prime suspect. The chief investigating officer was Ben Duncan, supervisory detective. When he was testifying during cross-examination, the defense questioned the quality of his investigative work and implied that he had not sufficiently investigated Gjerde. Thereafter, on redirect examination, Officer Duncan was asked some questions about his investigation. Over repeated defense objections he was permitted to testify as follows:

Q Did you take any further investigative steps with respect to Brian Gjerde?

A We followed the same steps that we followed with these other people, plus one other step.

Q What was that?

A I asked that Mr. Gjerde be administered two lie detector examinations.

Q All right. Was that done?

MR. PATTERSON: I would object to any further questions. This was the offer of proof. I'd object to any further questions being placed to this officer.

THE COURT: Objection is overruled.

Q (Mr. Furman) Could you answer yes or no; was this done?

A This was done.

MR. FURMAN: No further questions.

Petitioner's objection to that series of questions and answers was properly preserved throughout the proceeding.

It is a long-standing rule in Washington that the results of polygraph examinations are not admissible, except by stipulation. This rule is supported by substantial authority, including, but not limited to, State v. Descoteaux, 94 Wash.2d 31, 614 P.2d 179 (1980); State v. Young, 89 Wash.2d 613, 621, 574 P.2d 1171, cert. denied, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); State v. Young, 87 Wash.2d 129, 131, 550 P.2d 1 (1976); State v. Woo, 84 Wash.2d 472, 473, 527 P.2d 271 (1974). The reasons for the rule are well stated in those cases. The focus of this case, however, is upon whether this rule was violated by the questions and answers quoted above.

The defense, in cross-examination or otherwise, had in no way mentioned a polygraph examination. Likewise, the defense had not sought to illicit any inadmissible evidence, but merely had asked Officer Duncan if he had conducted an adequate investigation, and specifically asked him if he had fingerprinted and photographed Gjerde. Therefore, the rule of "opening the door" relied on by the trial court and Court of Appeals is not applicable. For a discussion of the opening-the-door doctrine, see Bertang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971), and 1 Wigmore on Evidence, § 15 (3d ed. 1940).

In State v. Descoteaux, supra, we stated at 183:

The mere fact a jury is apprised of a lie detector test is not necessarily prejudicial if no inference as to the result is raised or if an inference raised as to the result is not prejudicial. See Dean v. State, 325 So.2d 14 (Fla.Dist.Ct.App. 1975), cert. denied, 333 So.2d 465 (1976); Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, (96 S.Ct. 3226), 49 L.Ed.2d 1220 (1976). However, " ' "such evidence is liable to be prejudicial and should be admitted only when clearly relevant and unmistakably nonprejudicial." ' " Dean v. State, supra, 325 So.2d at 18, quoting Johnson v. State, 166 So.2d 798, 805 (Fla.Dist.Ct.App. 1964).

Here, the questions and answers, by strong implication, gave the jury the results of the polygraph examinations. In this connection it should be remembered that Gjerde was the initial prime suspect and that suspicion was diverted away from him and centered upon defendant. This occurred after Gjerde had taken two polygraph examinations. The obvious inference is that Gjerde passed the polygraph examinations, thereby satisfying the police investigators that he was not the guilty party. This inference strongly fortified his testimony against petitioner and gave the jury the results of the polygraph examinations almost as clearly as...