State v. Boileau

McInturff, J. — The defendant was convicted by a jury of grand larceny by embezzlement of funds belonging to her former employer. In the fall of 1973 an audit of the defendant's employer's records revealed that more than $8,000 was missing. When confronted by the employer, the defendant admitted manipulating service and purchase orders but denied taking any cash for her own use. She said she manipulated the orders to cover cash shortages she had discovered because she was afraid of losing her job. When her employment was terminated, she consulted counsel and took a private independent polygraph examination administered by an admittedly qualified polygraph examiner. The examination was conducted without the knowledge of the police or prosecutor's office, and there was no stipulation that the results of the test would be admissible. After an extensive investigation of nearly 2 years, defendant was advised by the prosecuting attorney that she would be criminally prosecuted for the alleged shortages unless she "passed" a polygraph examination stipulated to [261] be admissible in court. On June 12, 1975, both she and her attorney signed a stipulation acknowledging awareness of her constitutional rights, waiving those rights, and stipulating that all questions, answers and results of a test to be given on that day would be admissible in evidence at trial. Upon the decision of the examiner, Sgt. Richard Nesary, that the defendant was not being truthful in regard to questions concerning the embezzlement, she was charged with grand larceny the next day. The primary contention of the defendant concerns whether the court erred in not allowing her to introduce evidence of an unstipulated polygraph examination to impeach the testimony of the unfavorable results of the stipulated polygraph examination. She argues that this resulted in a denial of effective cross-examination — that she was wrongfully deprived of the opportunity to make an offer of proof. The court based its refusal to admit the unstipulated polygraph exam primarily upon Sgt. Nesary's testimony to the effect that it would be necessary to compare questions asked by him with questions asked by the examiner on the prior polygraph; that the questions would have to be worded substantially the same. Sergeant Nesary also said that the background information upon which the questions were founded would have to have been nearly the same. The court said: That it [the unstipulated polygraph] may be admissible for impeachment purposes. However, we are in this situation and this is why I allowed the hypothetical question to come out so I could determine what Sgt. Nesary's testimony on this was going to be. He has agreed that there may be a difference of opinion as far as he and Mr. Jenkins are concerned. However, in connection with a previous test, the testimony is that if Mr. Jenkins had the same information and if he had asked the same questions then there would be a disagreement that would be of impeachment value as far as Sgt. Nesary is concerned, but with the testimony that the information to the examiner and the questions would have to be essentially the same in order to create an impeachment situation and with the disparity of time between when the two [262] tests were taken [about 2 years] and the fact the tests were not essentially the same, I will rule that any further testimony concerning that is inadmissible because it would not go to impeachment of Sgt. Nesary. He had explained why there would be a difference. We agree with the trial judge. The law concerning the admissibility of unstipulated polygraph examination results remains certain. The court in State v. Woo, 84 Wn.2d 472, 475, 527 P.2d 271 (1974), followed the basic general rule set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), that polygraph examinations are not admissible at trial; however, it said: If we are to consider a departure from a virtually unanimous rule against the admissibility of polygraph examinations, absent stipulation, we must be furnished with a record sufficiently adequate to permit review of the subject. (Italics ours.) Adhering to this same rule in State v. Young, 87 Wn.2d 129, 131-32, 550 P.2d 1 (1976), the court said that the evidence before them was insufficient to support a reconsideration of the rule. Those factors which were mentioned as significant in State v. Woo, supra, were not covered in the appellant's offer of proof. We are not shown what the tests consisted of, what the qualifications of the examiners were, what the standards were which they followed, and what evidence there is of reliability. Here, at the omnibus hearing,1 defense counsel said the unstipulated polygraph examination and the necessary background data would be furnished to the State. However, [263] the State received neither. During the trial, after testimony by Sgt. Nesary to the effect that the only way to be fair in comparing results of the unstipulated polygraph to his examination would be (1) that the report giving the background information to the polygraph examiner be basically the same and (2) that the questions which were asked be substantially the same; the trial judge repeatedly requested an offer of proof concerning those facts. He indicated that the unstipulated polygraph examination possibly could be used for impeachment purposes but only with proof of the background information available to the prior polygraph examiner as well as the wording of the questions used in the prior test. Here, there was no proof of either the prior examiner's background information or the questions he asked. The defendant's last contention is that the court erred in allowing the State to introduce evidence of a defense witness' misconduct as impeachment. The State argues the evidence was presented to show motive on the part of the defendant and to question her memory. We do not answer the specific issue because the court later ruled that the testimony was inadmissible and specifically instructed the jury to disregard and not to consider it. In light of the curative instruction which came immediately before the court read the instructions to the jury, we do not consider the error, if any, to have been prejudicial to the defendant. As stated in Municipality of Metro. Seattle v. Kenmore Properties, Inc., 67 Wn.2d 923, 930-31, 410 P.2d 790 (1966), as quoted from State v. Gay, 82 Wash. 423, 428, 144 P. 711 (1914): The presumption in all cases is that the jury obeyed the instructions of the court, and this presumption must prevail until it is overcome by some showing that the fact is otherwise. No such showing was made in this case. Judgment of the Superior Court is affirmed. Munson, C.J., concurs. Footnotes [1] On July 9, 1975, an omnibus hearing was conducted and at the hearing the defendant indicated she intended to introduce testimony of an unstipulated polygraph examination conducted by John Jenkins. The following colloquy occurred: The Court: Have you submitted copies of the polygraph report— Mr. Roy [attorney for defendant]: Yes, they have been. The Court: —to the State, Mr. Roy? Mr. Roy: Do you have the original? Mr. Shaw [prosecuting attorney]: No I have never seen it. Mr. Roy: We will provide it. I thought it had been. I was not on the case at that time. (Italics ours.)