Willis v. State

Decision Date19 April 1978
Docket NumberNo. 277S57,277S57
Citation268 Ind. 269,374 N.E.2d 520
PartiesJesse James WILLIS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Harold Kohlmeyer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Gerald M. Arthur, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Willis was convicted by a jury on August 27, 1976 in the Marion Criminal Court of rape and first-degree burglary. He was sentenced to twenty years imprisonment. The first trial of these charges was held December 29, 1975, with the jury returning a verdict of guilty. On May 4, 1976, the trial court granted appellant's Motion to Correct Errors, and the second trial was held. Appellant was again convicted, and the present appeal follows.

The record shows that on August 23, 1975, at 4:00 a. m., the prosecutrix was awakened in the bedroom of her home by appellant. Appellant struck her on the head and told her to keep her mouth shut or he would kill her. He then took her clothes off, covered her head with a towel and had intercourse with her three or four times during the next hour and a half. After appellant left, the prosecutrix noticed that approximately fifteen to twenty dollars were missing from her billfold.

Appellant argues: (1) that the trial court erred in denying his Motion to Vacate and Set Aside a Stipulation, which sought to prevent his polygraph examination results from being admitted at trial, and; (2) that the trial court erred in admitting evidence of his alleged subsequent rape of another woman.

I.

Appellant first claims that the trial court erred when it denied his Motion to Vacate and Set Aside a Stipulation. The stipulation was that appellant be given a polygraph examination. It also contained a waiver of appellant's constitutional privilege against self-incrimination, together with an agreement that the examination results could be admitted in evidence by either party. The stipulation was filed with the court prior to the first trial on these same charges, and the Motion to Vacate was made between the first trial and the second trial. Appellant argues both that undue pressure was exerted on him by a parole officer to take the polygraph examination, and that the stipulation was applicable only to the first trial.

The record shows that appellant requested to take the polygraph examination despite counsel's advice to the contrary. He signed an express waiver of any violation of his rights against self-incrimination which could result from use of the test results at trial. There was nothing in the stipulation that indicated any intention to limit its use to the first trial only. Prior to the second trial, a hearing was held on the Motion to Vacate and Set Aside the Stipulation. At the hearing, appellant claimed his will was overborne by a parole officer's insistence that he take the examination. After questioning by the trial court, appellant's motion was denied. The examination results were admitted into evidence at the second trial over appellant's objection. However, appellant only objected to its use in the state's rebuttal instead of their case-in-chief, and not to the stipulation itself.

It is the prerogative of an accused to take a polygraph examination. Baker v. State (1976) Ind., 355 N.E.2d 251. The test results are admissible at trial only when the subject has signed an express waiver to take the examination, and was adequately represented at the time of the waiver. He cannot then complain that the state has violated his right against self-incrimination when the test results are used on rebuttal by the state. Reid v. State (1972) 259 Ind. 166, 285 N.E.2d 279.

Here, the examination results were used in rebuttal by the state. Prior to the second trial, the stipulation was reviewed by the trial court and found to be admissible into evidence. There was ample evidence at the hearing from which the trial court could find that appellant voluntarily took the polygraph examination, voluntarily signed the stipulation, and was adequately represented by counsel. In addition, there was nothing adduced indicating a limited use of the stipulation. This was not a new set of facts to be tried, but only a second trial on the same charges. Once a stipulation is filed with the court, unless both parties agree to its withdrawal, or it is limited in its use, it is as effective in a second trial on the same charges as it was in the first trial. Therefore, the trial court properly denied appellant's Motion to Vacate and Set Aside the Stipulation.

II.

Appellant next contends the trial court erred when it admitted the testimony of H.E. H.E. testified that she was raped by appellant subsequent to the rape of the prosecutrix herein. Appellant argues that the circumstances and the perpetrator's physical characteristics in the alleged H.E. rape, as compared...

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25 cases
  • Norton v. State
    • United States
    • Indiana Supreme Court
    • 4 Agosto 1980
    ...or a common scheme or plan with respect to the charged crime. Grooms v. State, (1978) Ind., 379 N.E.2d 458, 463; Willis v. State, (1978) 268 Ind. 269, 272, 374 N.E.2d 520, 522; Pierce v. State, (1977) 267 Ind. 240, 248, 369 N.E.2d 617, 621. However, this rule did not require the exclusion o......
  • Lehiy v. State
    • United States
    • Indiana Appellate Court
    • 8 Diciembre 1986
    ...there must be characteristics so similar, unusual and distinctive that they are earmarked as the acts of one person. Willis v. State (1978), 268 Ind. 269, 374 N.E.2d 520. The use of force is not alone sufficient to meet this criteria. Malone v. State (1982), Ind., 441 N.E.2d 1339. The facts......
  • Willey v. State
    • United States
    • Indiana Supreme Court
    • 17 Junio 1999
    ...polygraph examiner's opinion testimony regarding the defendant's truthfulness in answering questions. See, e.g., Willis v. State, 268 Ind. 269, 273, 374 N.E.2d 520, 523 (1978) (stipulation provided "any interrogation or other things related to said examination including the results and the ......
  • Byrer v. State, 3-1080A322
    • United States
    • Indiana Appellate Court
    • 27 Julio 1981
    ...prove intent, purpose, motive, identity or a common scheme or plan. Porter v. State, (1979), Ind., 397 N.E.2d 269; Willis v. State, (1978), 268 Ind. 269, 374 N.E.2d 520, 522; Pierce v. State, (1977), 267 Ind. 240, 248, 369 N.E.2d 617, The State contends that the evidence of the Hook's incid......
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