State v. LaStair

WARDEN, P. J. In this criminal case, defendant appeals his convictions for rape in the first degree and sexual abuse in the second degree. He argues that the trial court erred in admitting evidence of a polygraph examination for impeachment purposes, because he had not stipulated to its admission. We reverse. Defendant was convicted of the sexual abuse and rape of his adopted daughter, Rekha. At the Lane County Courthouse, defendant submitted to a polygraph examination, arranged by Officer Dixson and administered by Officer Fox. After Fox accused him of lying during the test, defendant made several admissions to Dixson. On direct examination, defendant testified regarding his statements: “After a discussion with Mr. Fox[,] I went to that interview with the intent in mind of sharing with them some information about my involvement with my daughter Rekha, * * * I did feel as though there were grounds for her allegations, but not to [the] extent that she was making them. By no means. I had stressed that to Mr. Dixson and to Mr. Fox. That’s when Mr. Fox went out to get Mr. Dixson.” On cross-examination, defendant testified: “Q. You indicated that you initially came down on June first to level with the police about what had happened!,] is that true? “A. The police weren’t the only people I told, but yes, they did not wear me down. “Q. Excuse me? “Q. They had made the indication that they had wore down my front. “Q. I don’t think they said that. “A. Yes, sir they did. I heard ‘em right here in the court. “Q. That’s for the jury to decide. “A. Okay. “Q. One of the questions that Detective Fox asked you was: Have you ever done anything sexual with Rekha? “A. Excuse me, I’m sorry I was changing position. “Q. Isn’t one of the questions that Detective Fox asked you, [561] quote, have you ever done anything sexual with Rekha, end quote? “A. In what interview? “Q. In the interview on June first, nineteen eighty-four, here in the courthouse when you and he were here alone? “A. Shortly after he came in, yes. I had intention of telling him about that anyway. “Q. Didn’t you tell him, no, you had never, never done anything sexual with Rekha? “A. Not at the interview, the previous interview, yes, but not that interview. “Q. Detective Dennis Fox, the first? “A. Excuse me, I’m sorry, I thought you said Dixson. Dennis Fox? I came here to talk with Detective Dixson. I did not really want to speak with Detective Fox. “It was interesting the way the two worked together on that situation. But, yes, I denied it initially with Mr. Fox. “[Prosecutor]: I have a matter for the Court.” Unless stipulated to by the parties, evidence of a polygraph examination is generally not admissible in Oregon. State v. Brown, 297 Or 404, 687 P2d 751 (1984).1 The state admits that the polygraph evidence was not admissible in its case-in-chief but argues that defendant’s testimony “opened the door” to the evidence, because “[t]he evidence that defendant came to the courthouse to take a polygraph test was inconsistent with defendant’s self-serving portrayal that he came to the courthouse solely to be candid with the police [and] was inconsistent with defendant’s obviously-intended implication that detectives Fox and Dixson had ‘worked together’ in some diabolical manner.” We need not reach the question of whether polygraph evidence is admissible for impeachment purposes, because, even assuming that it is, the evidence does not support the trial court’s finding that defendant “opened the door.”2 [562] We disagree with the state’s characterization of defendant’s testimony. He did not testify that he came to the courthouse solely to be candid with the police. He stated, “After a discussion with Mr. Fox[,] I went to that interview with the intent in mind of sharing with them some information * * (Emphasis supplied.) Defendant could not have been referring to his reason for coming to the courthouse, because he was already at the courthouse when he talked to Fox. The interview he referred to was presumably the interview after the polygraph examination, in which he made admissions to Dixson. Because defendant made no statement concerning his intentions in coming to the courthouse, the state could not rebut his testimony by showing that he came to take a polygraph examination. Neither did the state elicit on cross-examination a statement from defendant that he came to the courthouse solely to be candid with the police. 3 We have reviewed the record, and none of the statements defendant made about his intentions on June 1, 1984, was sufficient to “open the door.”4 The state next tries to justify its reference to the [563] polygraph examination by defendant’s statement on cross-examination: “I came here to talk with Detective Dixson. I did not really want to speak with Detective Fox. It was interesting the way the two worked together on that situation.” The state argues that, because defendant “obviously” intended to imply that Fox and Dixson had worked together “in some diabolical manner,” the polygraph evidence was proper rebuttal. We disagree. It is not clear what defendant meant by the statement, much less that he meant to imply that the conduct of the detective was improper. Defendant testified later, “I didn’t come here to talk to Mr. Fox, no. It was Mr. Dixson that made the arrangements for me to come down here.” Defendant’s statement did not “open the door” to the highly prejudicial polygraph evidence. The dissent states: “[T]he state sought to impeach defendant by showing that he had testified inconsistently about his reason for coming to the courthouse — that, contrary to his self-serving testimony that he had come to the courthouse to tell the truth to the police, in fact, he had come there because he had been asked to take a polygraph examination.” 81 Or App at 569. (Emphasis in original.) The dissent concludes “that defendant’s self-serving testimony opened the door to the admission of the disputed evidence for impeachment purposes.” 81 Or App at 571. It points to no place in defendant’s testimony where he had stated a reason for coming to the courthouse; after again reviewing the transcript, we find none, on either direct or cross-examination. The first such reference is in the first of the prosecutor’s questions quoted above. If a door was opened, it was done by the prosecutor, not by defendant. The state is not entitled to get in evidence that defendant took a polygraph examination through a door opened by itself. The state argues that there was no prejudice to defendant, because the test result was not disclosed to the jury. However, the prosecutor clearly signalled to the jury that defendant had failed the test. He argued in closing: “Mr. LaStair says he came to the July first interview, the one where the polygraph was given, to admit that he had been engaging in sexual activity with Rekha. If that was the case[,] [564] why did he go through the charade of the polygraph and deny during the course of the polygraph, and only admit after he’s confronted by Dennis Fox? How transparent? a* * * * * “What happened in this case, I would submit to you, was that when this finally came out, Mr. LaStair denied and denied, denied to the police; denied to his wife; came down and tried to beat the polygraph. When confronted by Detective Fox with the fact that Detective Fox didn’t believe [him] * * 5? The prosecutor continued in his rebuttal argument to the jury; “[H]e tells you folks that he came down to the police department on June — or the courthouse, across the way here, on June first to admit some involvement with his daughter, when in reality he came down here trying to beat the polygraph. He lied and lied and lied. He finally got confronted and only then told his story * * The clear implication of the prosecutor’s statements to the jury is that the result of the polygraph examination was that defendant had failed it and that the examination had proved that he had been lying. One reason given by the Supreme Court for excluding polygraph evidence is that the jury may overvalue it. “Polygraph evidence may well divert the trier of fact from the direct and circumstantial evidence presented in a case to a distorted valuation of the polygraph evidence.” State v. Brown, supra, 297 Or at 440. We cannot say that the court’s jury instructions were sufficient to cure the error or that the error in admitting the evidence was harmless and was very unlikely to have changed the result of the trial. Therefore, we reverse. State v. Mains, 295 Or 640, 663, 669 P2d 1112 (1983). Reversed and remanded for a new trial. Footnotes [1] The court in Brown stated that it has not yet passed on the question of the admissibility of polygraph evidence pursuant to a stipulation. 297 Or at 445 n 35. We have since held that the evidence is admissible. State v. Bass, 76 Or App 396, 708 P2d 1207 (1985). [2] The dissent cites several cases for the proposition that evidence, although inadmissible during the state’s case-in-chief, may be admissible for impeachment purposes. 81 Or App at 567 n 1. None of the cited cases from Oregon or the United States Supreme Court deals with polygraph evidence. We emphasize that the question of whether polygraph evidence is admissible for impeachment purposes has not been decided in Oregon. [3] On cross-examination, the following exchange occurred: “Q. You indicated that you initially came down on June first to level with the police about what happened[,] is that true? “A. The police weren’t the only people I told, but yes, they did not wear me down. “Q. Excuse me?” Defendant’s answer was not responsive to the question. He apparently thought that the prosecutor was inquiring into the voluntariness of his statements to the police. The exchange did not “open the door” for admission of the polygraph evidence. [4] Even if the state’s interpretation of defendant’s testimony is accepted, it does not justify reference to the polygraph examination. Defendant could be impeached without it. To demonstrate that defendant did not intend to be truthful with the police, the state needed only to inquire about the responses defendant gave Fox: that he first denied involvement with his daughter and then, when confronted by Fox, that he changed his story and made some admissions. That could have been elicited without informing the jury that it was in the context of a polygraph examination.