Thomas v. State, A14A1264.

• Decision Date: 21 November 2014
• Docket Number: No. A14A1264.,A14A1264.
• Citation: 330 Ga.App. 67,766 S.E.2d 527
• Parties: THOMAS v. The STATE.
• Court: Georgia Court of Appeals

330 Ga.App. 67

766 S.E.2d 527

THOMAS

v.The STATE.

No. A14A1264.

Court of Appeals of Georgia.

Nov. 21, 2014.

Kenneth D. Kondritzer, for Appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., Daniel James Nagel, Asst. Dist. Atty., for Appellee.

Opinion

BRANCH, Judge.

Montavius Thomas was tried by a Clayton County jury and found guilty on two counts of sexual battery of a child.¹ He now appeals from the denial of his motion for a new trial, arguing that the trial court erred in admitting the results of his police-administered polygraph examination. We find no error and affirm.

The facts relevant to Thomas's appeal are undisputed. The record shows that in September 2011 the Clayton County Police Department received a report that Thomas had molested D.P., a minor child, on one or more occasions. The case was assigned to Detective James Watson, who interviewed Thomas on November 10, 2011. On that date, Thomas voluntarily went to police headquarters to speak with Watson; during the interview, he denied all of the allegations that had been made against him. At the end of the interview, Watson asked Thomas whether he would be willing to take a polygraph exam if offered the opportunity. According to Watson, Thomas stated “emphatically” that he wanted to take a polygraph “and in fact [expressed that] he wanted to take it right then.” The polygraph exam, however, did not take place until almost two weeks later, on November 22, 2011. On that day, Watson picked Thomas up from his residence and drove him to police headquarters.² Watson explained to Thomas that after they arrived at the police station, there would be forms for Thomas to review and sign, including a form explaining Thomas's Miranda rights; that the entire process would take approximately three to four hours;³ and that the exam would be conducted by an officer other than Watson.

At the police station, Thomas met with Phong Nguyen, the Clayton County officer who conducted the polygraph exam.⁴ Before he began the polygraph, Nguyen reviewed three forms with Thomas, each of which Thomas signed after reading. The first form was a Miranda -rights waiver form, which informed Thomas that any statements he made during the polygraph exam could and would be used against him “in a court of law.” The waiver also advised Thomas as to all of his constitutional rights with respect to the exam, including his right to remain silent and his right to confer with counsel and to have an attorney present at the polygraph. This form further explained that Thomas could exercise his rights “at any time” during the polygraph exam, and elect “not [to] answer any questions or make any statements.”

The second form that Nguyen reviewed with Thomas was titled “Consent To Take Polygraph Examination” (“the Consent”). This form stated that Thomas consented to the testing, including the placing of certain equipment on his body, and further provided that Thomas understood that he could “terminate the Examination at any time.” Additionally, paragraph D of the form stated: “I [Thomas] understand that the results of the Examination will be made known only to myself, CCPD [Clayton County Police Department], and/or others as may be required by law.”

The third and final form reviewed with and signed by Thomas was a stipulation as to the admissibility of the polygraph results (“the Stipulation”). In the upper, left hand corner of the document is the case caption “State of Georgia vs. Montavius Thomas.”⁵ Below the case style, the document is captioned “STIPULATION,” and the form provides, in relevant part:

It is hereby agreed and stipulated ... that any questions propounded by [the] Examiner, relating to the above[-]styled case and the answers thereto and everything appertaining to said examination, including any statements given and the entire results of said answers, be received in evidence in the above [-]styled case, either on behalf of the State or ... the Defendant. The said Defendant hereby waives his/her constitutional privileges against self-incrimination to the extent that the same may be involved in the presentation in evidence on the foregoing matters. It is expressly stipulated that the foregoing shall not constitute a waiver of the Defendant's privileges against self-incrimination except as set forth above.

Approximately four months after he underwent the polygraph exam, Thomas was indicted on two counts of child molestation.⁶ Prior to trial, Thomas filed a motion in limine seeking to exclude the results of his polygraph exam. Following a hearing on that motion, the trial court denied the same. The evidence relating to Thomas's polygraph exam was then heard by the jury, with Nguyen testifying as to his expert opinion on the results of the exam. Nguyen testified that when questioned about the allegations against him, Thomas denied the acts of molestation, and the exam indicated that these responses were “untruthful.”

Thomas's sole claim of error on appeal is that the trial court erred in denying his motion in limine as to the polygraph results. As a general rule, the results of polygraph tests are not admissible in evidence, as they are not considered reliable.

Lockett v. State, 258 Ga.App. 178, 180 –181(2), 573 S.E.2d 437 (2002). Where the parties enter into an “express stipulation” providing that the results of a particular polygraph exam will be admissible, however, a trial court shall admit such evidence “for the jury to attach to [those results] whatever probative value [it] may find them to have.” State v. Chambers, 240 Ga. 76–77, 239 S.E.2d 324 (1977). See also Beaudoin v. State, 311 Ga.App. 91, 94(4), 714 S.E.2d 624 (2011). Where, as here, a question is raised as to the existence or validity of an alleged stipulation, “the trial judge is the trier of fact and resolves any and all issues of truthfulness, credibility, and conflicts in the evidence.” Fatora v. State, 185 Ga.App. 15, 19(3), 363 S.E.2d 566 (1987) (citations omitted). And the trial court's ruling as to the validity of the stipulation will not be disturbed absent an abuse of discretion. Id. “An abuse of discretion occurs where the trial court significantly misapplies the law or clearly errs in a material factual finding.” In the Interest of R. W., 315 Ga.App. 227, 232(3)(c), 726 S.E.2d 708 (2012) (punctuation and footnote omitted).

Thomas's claim of error focuses on the requirement that any stipulation as to the admissibility of polygraph exam results be “express.” The term “express,” Thomas argues, means that there can be no ambiguity in the alleged stipulation. And he contends that the Stipulation at issue here is ambiguous and therefore invalid. We find no merit in this claim.

Thomas offers two arguments to support his assertion that the Stipulation is ambiguous. First, he asserts that the document itself is ambiguous because it provides that evidence of the polygraph will be admissible “in the above [-]styled case.” Although the case style “State of Georgia vs. Montavius Thomas” is written at the top of the document, Thomas notes that no case number, court name, or other identifying information is given, nor does the document reflect any crime with which Thomas had been charged. Thomas argues that the lack of more specific information identifying the case in which the polygraph results would be admissible means the Stipulation is vague and not “express.”

The specific case information which Thomas contends was necessary for the Stipulation to be valid was unavailable because at the time he executed the Stipulation, Thomas had not yet been arrested or indicted. Under Georgia law, however, a stipulation as to the admissibility of polygraph exams is not rendered void simply by the fact that the stipulation was made before the defendant was arrested or indicted. See Beaudoin, 311 Ga.App. at 93–94(3), 714 S.E.2d 624 ; Lockett, 258 Ga.App. at 179, 573 S.E.2d 437. Indeed, because polygraph exams usually are administered during the investigation of a case, it would be illogical to require that they contain specific case information that would be available only after a suspect is arrested or indicted. Thus, our case law shows that the validity of a stipulation as to the admissibility of polygraph results does not depend on whether the defendant was under arrest or indictment at the time he entered the stipulation. Rather, in determining the validity of a stipulation, courts examine whether, at the time the stipulation was made, the defendant was aware he was the subject of a criminal investigation; was aware that criminal charges could be filed against him with respect to the matter that was the subject of the polygraph exam; and understood his constitutional rights, including his right to counsel, his right to remain silent and refuse the exam, and his right to terminate the exam at any time. See Beaudoin, 311 Ga.App. at 94(4), 714 S.E.2d 624 (where defendant took the polygraph and stipulated as to its admissibility while under investigation for alleged child molestation and “the evidence show[ed] that [defendant] knew and understood his rights before he waived counsel and stipulated to the admissibility of the polygraph results, the trial court's determination that stipulation was valid ... will be affirmed”) (citations omitted); Ivey v. State, 203 Ga.App. 886, 887(1), 418 S.E.2d 71 (1992) (where a defendant being investigated for alleged child molestation made “a knowing waiver of his right to counsel and stipulate[d] to the admissibility of the results of a polygraph examination, the results are admissible at trial”); Fatora, 185 Ga.App. at 18–19(3), 363 S.E.2d 566 (stipulation executed during the investigative phase of the case was valid where evidence showed that the defendant was informed of and understood his rights, including his right to counsel, right to remain silent, right to refuse the polygraph exam, and his right to terminate the exam at any time).

Here, the evidence shows that at the time he...