State v. Wroe, 62A01–1403–CR–116.

• Docket Nº: No. 62A01–1403–CR–116.
• Citation: 16 N.E.3d 462
• Case Date: September 09, 2014
• Court: Court of Appeals of Indiana

16 N.E.3d 462

STATE of Indiana, Appellant–Plaintiff
v.
Jacob A. WROE, Appellee–Defendant.

No. 62A01–1403–CR–116.

Court of Appeals of Indiana.

Sept. 9, 2014.

16 N.E.3d 464

Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Cara Schaefer Wieneke, Special Assistant to the State Public Defender, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellee.

OPINION

BAKER, Judge.

The State of Indiana appeals the trial court's order granting Jacob Wroe's motion to suppress all evidence related to a polygraph examination Wroe had taken, including the stipulation to its admissibility signed by Wroe and the State. Although we acknowledge the concerns raised by Wroe regarding the agreement that he signed, and have significant reservations about the reliability of polygraph examinations and their admissibility in court, we are compelled by precedent to reverse the trial court's order.

FACTS

In July 2013, the Department of Child Services (DCS) received a report that three-year-old I.B., Wroe's niece, had disclosed that Wroe had touched her vaginal area in late June 2013. DCS informed the Tell City Police Department, which opened an investigation. On July 19, 2013, Lieutenant Detective Alan Malone conducted a forensic interview of I.B., who repeated the allegations regarding Wroe.

On July 29, 2013, Wroe voluntarily met with Lieutenant Malone at the police station. During that meeting, Wroe volunteered to take a polygraph test regarding I.B.'s accusations. In a prior criminal case against him, Wroe had taken and passed a polygraph test, resulting in the dismissal of all charges against him.

On July 31, 2013, Wroe returned to the police department for the polygraph examination. Police Chief Gregory Hendershot met with Wroe to go over the stipulation and agreement (the “Stipulation”) to be signed before the polygraph. Chief Hendershot read the document to Wroe out loud, as well as making it available for Wroe to read. Among other things, Chief Hendershot asked Wroe if he understood the terms of the Stipulation. Wroe stated that he did understand the document and then signed it. The prosecuting attorney's signature also appears on the document.¹ In pertinent part, the Stipulation provides as follows:

1. Jacob A. Wroe requests to take a polygraph examination.

2. Jacob A. Wroe understands that [he] has the right to remain silent and anything [he] says can and will be used against [him] in a [c]ourt of law.

3. Jacob A. Wroe understands that [he] has the right to an attorney and that if [he] cannot afford an attorney, the Court would appoint one for [him].

* * *

5. Jacob A. Wroe voluntarily agrees to take a polygraph examination to be administered by a polygraph examiner of the Indiana State police.

* * *

16 N.E.3d 465

7. Jacob A. Wroe voluntarily waives the constitutional privilege against self-incrimination....

* * *

9. The examiner is acknowledged to be a qualified polygraph examiner and an expert....

10. The examiner will be recognized as an expert witness....

11. The questions of the examiner, the answers of Jacob A. Wroe, the record of Jacob A. Wroe's reactions, any statements made by Jacob A. Wroe, and anything else relating to the examination including the results and the opinions of the examiner shall be admitted at any trial or hearing as evidence either on behalf of Jacob A. Wroe or the State of Indiana. The opposing party hereby expressly waives any and all objections to such testimony as to the competency, weight, relevancy, remoteness, or admissibility of such testimony based upon public, legal, judicial, social policy, due process of law, and/or such rules of evidence as might otherwise govern.

* * *

20. Jacob A. Wroe acknowledges that the results of the polygraph examination would not be admissible but for this signed Stipulation and Agreement. Upon signing this Stipulation and Agreement, Jacob A. Wroe further acknowledges that he is waiving his Fifth Amendment right against self-incrimination and that [he] is waiving [his] right to counsel.

21. If the examiner's final opinion indicates that Jacob A. Wroe is not guilty of any charges, the State of Indiana will cease to investigate Jacob A. Wroe as a suspect in this investigation....

Tr. Ex. A p. 1–4.

On September 19, 2013, the State charged Wroe with one count of Class C felony child molesting. On January 16, 2014, Wroe filed a motion to suppress the Stipulation, the polygraph examination, and all other evidence related to the polygraph. Following a February 11, 2014, hearing on the motion, the trial court summarily granted it on February 19, 2014. On February 21, 2014, the State filed a motion to dismiss the charge, which the trial court granted on the same day. The State now appeals.

DISCUSSION AND DECISION

I. Cross–Appeal: Timeliness

As a preliminary issue, Wroe cross-appeals, arguing that this appeal is untimely brought. Indiana Code section 35–38–4–2 provides that the State may appeal the grant of a motion to suppress only where the “ultimate effect of the order is to preclude further prosecution.” Wroe notes that the uncorroborated testimony of a victim, without more, may be sufficient to obtain and uphold a child molesting conviction. E.g., Deaton v. State, 999 N.E.2d 452, 456 (Ind.Ct.App.2013). Therefore, Wroe contends that I.B.'s testimony in this case would have been sufficient to obtain a conviction and, as a result, the grant of the motion to suppress did not preclude further prosecution.

We cannot agree. It is not the role of this Court “to review the evidence available to the State and make an independent determination whether prosecution is possible without the suppressed evidence.” State v. Aynes, 715 N.E.2d 945, 948 (Ind.Ct.App.1999). The strategic decision of whether to pursue a prosecution belongs to the attorneys representing the State, and it is not within our purview to second-guess that determination. Therefore, this argument is unavailing, and we proceed to consider the issue raised by the State in its appeal.

16 N.E.3d 466

II. Motion to Suppress

The State argues that the trial court erroneously granted Wroe's motion to suppress. When reviewing the grant of a motion to suppress evidence, we must determine whether the record contains substantial evidence of probative value supporting the trial court's decision. State v. Vanderkolk, 10 N.E.3d 585, 592 (Ind.Ct.App.2014). We will not reweigh the evidence, and because the State appeals from a negative judgment, it must show that the trial court's decision to suppress the evidence was contrary to law. Id.

As a general matter, Indiana courts look with disfavor on the admission of polygraph examinations into evidence in criminal proceedings. Consequently, our Supreme Court has held that polygraphs are admissible only when four prerequisites are met:

(1) the prosecutor, defendant, and defense counsel must all sign a written stipulation providing for the defendant's submission to the examination and for the subsequent admission at trial of the results;

(2) the admissibility of the test results must be within the trial court's discretion as it relates to the examiner's qualifications and the test conditions;

(3) the opposing party must have the right to cross-examine the polygraph examiner if his graphs and opinion are offered in evidence; and

(4) the jury must be instructed that, at most, the examiner's testimony tends only to show whether the defendant was being truthful at the time of the examination, and that it is for the jury to determine the weight and effect to be given such

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