State v. Varos
| Decision Date | 28 July 1961 |
| Docket Number | No. 6672,6672 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Leo M. VAROS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Bertrand B. Prince, Santa Fe, for appellant.
Hilton A. Dickson, Jr., Atty. Gen., B. J. Baggett, Asst. Atty. Gen., Fred M. Calkins, Jr., Spec. Asst. Atty. Gen., for appellee.
On motion for rehearing, the original opinion is hereby withdrawn, and the following substituted therefor:
The defendant was found guilty of voluntary manslaughter by a jury in Taos County, and he appeals.
The only question raised by appellant that needs to be discussed relates to whether the defendant was prejudiced by the introduction of certain testimony as to a polygraph test. We hasten to add that we are not in this case dealing with the problem of the admissibility of the test as such, its not being argued or briefed. The attorney general takes the position that 'we do not believe that any good purpose would be served in debating the merits of giving or withholding the results of a lie detector test from a jury, since it is our position that the results of the polygraph test were not given to the jury.' The defendant, on the contrary, says that the results were given to the jury by indirection in the testimony received.
The instant case was argued and the original opinion announced before our decision in State v. Trimble, 362 P.2d 788. In that case, we specifically held that evidence of the results of a polygraph test was not admissible over objection. Thus, we will consider this case on rehearing in the light of the rule just announced, and summarize the facts as follows.
The defendant and a group of friends were involved in a fight with another group of young men, and one of the second group was killed by a knife wound in the heart. Upon being questioned, the defendant first denied having a knife, then the following day he made a written statement admitting that he had pulled out a knife after being knocked to the ground by the other young men, but that he did not remember whether he had stabbed anyone or not. This statement was made to the district attorney and the district attorney's special investigator, immediately before the defendant was given a so-called lie detector test. After the test was given, the defendant himself wrote at the end of the statement, 'I now admit I stabbed somebody but I don't know who.' During the trial, the operator of the polygraph machine was called as a witness for the state, and testified generally as to the operation of the machine. The court carefully restricted his testimony so that no evidence was admitted as to any questions asked, any answers made by the defendant, or the defendant's reactions to the test. However, an examination of the record of this testimony makes it quite plain that the jury was given the impression that through the use of the machine the defendant was shown to have been lying. A few excerpts of the testimony serve to illustrate what was conveyed to the jury:
'A. * * *.
'Insofar as my findings are concerned, I have never yet been found to be wrong, but I have been found to be right.
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'The Court: Mr. Hathaway, when you speak of the word guilty do you mean it in the sense of being responsible for inflicting the wound, you are not passing on his guilt or innocence?
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To 'cap it all off,' on redirect the district attorney asked the witness about another case not remotely related to the trial, which could only have served to impress the jury with the so-called infallibility of the polygraph. This testimony appears as follows:
We realize that there are cases which have ruled that confessions obtained through the use of a lie detector does not of itself render them inadmissible. State v. Dehart, 1943, 242 Wis. 562, 8 N.W.2d 360; Commonwealth v. Hipple, 1939, 333 Pa. 33, 3 A.2d 353; and Webb v. State, 1956, 163 Tex.Cr.R. 392, 291 S.W.2d 331. But this is not the question here. The statement and the addition thereto are apparently admissible and could have been proven by the state without reference to the test on the machine. The fallacy here was allowing the jury to have the detailed account of the machine and the circumstances of its use, when this evidence could only have had a prejudicial effect on the defendant.
We are fully cognizant that no proper objection was made by counsel for the defendant during the presentation of the doubtful testimony. However, there can be no question but that the trial court was fully alerted to the true situation in view of the various exchanges between the court and counsel during the time the witness was on the stand, and in view of the very apparent recognition by the court of the importance of restricting the testimony within certain limits. Where a case is as close as this one, we may consider errors in the record notwithstanding failure of counsel to properly save a question for review, but we do not want it implied...
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...Walker, 37 N.J. 208, 214, 216, 181 A.2d 1 (1962); State v. Arnwine, 67 N.J.Super. 483, 171 A.2d 124 (App.Div.1961); State v. Varos, 69 N.M. 19, 363 P.2d 629 (Sup.Ct.1961); State v. Trimble, 68 N.M. 406, 362 P.2d 788 (Sup.Ct.1961); Mattox v. State, 240 Miss. 544, 128 So.2d 368 (Sup.Ct.1961);......
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