State v. Hart

Court of Appeals of Oregon

State v. Hart

779 P.2d 182, 98 Or. App. 305, 1989 Ore. App. LEXIS 1069

CourtCourt of Appeals of Oregon

DecidedSeptember 6, 1989

Docket85-1192; CA A50370

StatusPublished

Cited by4 cases

This text of 779 P.2d 182 (State v. Hart) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hart, 779 P.2d 182, 98 Or. App. 305, 1989 Ore. App. LEXIS 1069 (Or. Ct. App. 1989).

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Opinions

[307]*307RIGGS, J.

Defendant is charged with first degree rape. ORS 163.375. The state appeals from a pretrial order suppressing statements made by defendant during an interview immediately preceding his taking a polygraph examination. The issue is whether the trial judge abused his discretion in ruling that the probative value of the challenged statements was substantially outweighed by their prejudicial effect. We affirm.

Detective Stephenson came to defendant’s place of business to investigate defendant’s role in an alleged rape. He advised defendant that he was not under arrest, that no charges were pending against him and that he was free to leave at any time. Defendant acknowledged having had sexual intercourse with the alleged victim but said that the encounter was entirely consensual. At the conclusion of the interview, Stephenson asked defendant if he would be willing to submit to a polygraph to confirm his story. The court found that, from what Stephenson told him, defendant believed “that if he passed the polygraph the case would be dismissed but if he failed he would be arrested.” Defendant agreed to take a polygraph examination.

Ten days later, Sergeant Plester of the Oregon State Police conducted a polygraph examination. As part of the examination, he conducted a standard pre-test interview. In the interview, defendant’s account of his encounter with the alleged victim differed from the one that he gave in his earlier interview with Stephenson, although he again maintained that the encounter was consensual.

At the pretrial hearing on defendant’s motion to suppress, the state sought to admit the pre-test statement to demonstrate the discrepancy in defendant’s two versions of the story. Defendant moved to have the statement suppressed on the ground that it was involuntary. He argued that the only way that he could defend himself, if the statement were admitted, would be to inform the jury of the circumstances under which he made the second statement, that is, as a prelude to a polygraph examination that he thought he had to pass to avoid arrest. He further argued that, even if the jurors were not told the results of the polygraph test, they would infer that he had failed it from the fact that he was on trial for rape. The state [308]*308contends that the interview could be offered without identifying the circumstances under which it took place, but defendant answers that to do so would deny him his right to defend himself effectively by confronting the witness.

Under Oregon law, first the court and then the jury must decide whether an admission by a defendant is voluntary. In State v. Brewton, 238 Or 590, 600, 395 P2d 874 (1964), the Supreme Court adopted the Massachusetts rule, under which

“the judge hears all the evidence and must ‘fully and independently’ resolve the issue of voluntariness against the accused before allowing the confession in evidence. If the judge finds the confession voluntary and admits it in evidence, the jury is then instructed that it must also find that the confession was voluntary before it may consider it.” (Citations omitted.)

Here, the trial court ruled that defendant’s statement was voluntary.¹ The court nevertheless suppressed the statement after balancing its probative value against the prejudice to defendant if he were forced to introduce the fact that he took a polygraph examination. OEC 403. We accord deference to the trial judge’s decision that the statement is unfairly prejudicial. State v. Bernson, 93 Or App 115, 121, 760 P2d 1362, rev den 307 Or 246 (1988). We will reverse the ruling only for an abuse of discretion. State v. Johns, 301 Or 535, 559, 725 P2d 312 (1986).

We conclude that the trial judge did not abuse his discretion. He first found the challenged evidence relevant and probative. He then concluded that a jury could infer that defendant had taken and failed a polygraph examination. Finally, he concluded that State v. Lyon, 304 Or 221, 744 P2d 231 (1987), makes polygraph evidence prejudicial as a matter of law. Consequently, he suppressed the pre-test interview. His decision was within his discretion, and we will not disturb it.

Affirmed.

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[307]*307RIGGS, J.

Defendant is charged with first degree rape. ORS 163.375. The state appeals from a pretrial order suppressing statements made by defendant during an interview immediately preceding his taking a polygraph examination. The issue is whether the trial judge abused his discretion in ruling that the probative value of the challenged statements was substantially outweighed by their prejudicial effect. We affirm.

Detective Stephenson came to defendant’s place of business to investigate defendant’s role in an alleged rape. He advised defendant that he was not under arrest, that no charges were pending against him and that he was free to leave at any time. Defendant acknowledged having had sexual intercourse with the alleged victim but said that the encounter was entirely consensual. At the conclusion of the interview, Stephenson asked defendant if he would be willing to submit to a polygraph to confirm his story. The court found that, from what Stephenson told him, defendant believed “that if he passed the polygraph the case would be dismissed but if he failed he would be arrested.” Defendant agreed to take a polygraph examination.

Ten days later, Sergeant Plester of the Oregon State Police conducted a polygraph examination. As part of the examination, he conducted a standard pre-test interview. In the interview, defendant’s account of his encounter with the alleged victim differed from the one that he gave in his earlier interview with Stephenson, although he again maintained that the encounter was consensual.

At the pretrial hearing on defendant’s motion to suppress, the state sought to admit the pre-test statement to demonstrate the discrepancy in defendant’s two versions of the story. Defendant moved to have the statement suppressed on the ground that it was involuntary. He argued that the only way that he could defend himself, if the statement were admitted, would be to inform the jury of the circumstances under which he made the second statement, that is, as a prelude to a polygraph examination that he thought he had to pass to avoid arrest. He further argued that, even if the jurors were not told the results of the polygraph test, they would infer that he had failed it from the fact that he was on trial for rape. The state [308]*308contends that the interview could be offered without identifying the circumstances under which it took place, but defendant answers that to do so would deny him his right to defend himself effectively by confronting the witness.

Under Oregon law, first the court and then the jury must decide whether an admission by a defendant is voluntary. In State v. Brewton, 238 Or 590, 600, 395 P2d 874 (1964), the Supreme Court adopted the Massachusetts rule, under which

“the judge hears all the evidence and must ‘fully and independently’ resolve the issue of voluntariness against the accused before allowing the confession in evidence. If the judge finds the confession voluntary and admits it in evidence, the jury is then instructed that it must also find that the confession was voluntary before it may consider it.” (Citations omitted.)

Here, the trial court ruled that defendant’s statement was voluntary.¹ The court nevertheless suppressed the statement after balancing its probative value against the prejudice to defendant if he were forced to introduce the fact that he took a polygraph examination. OEC 403. We accord deference to the trial judge’s decision that the statement is unfairly prejudicial. State v. Bernson, 93 Or App 115, 121, 760 P2d 1362, rev den 307 Or 246 (1988). We will reverse the ruling only for an abuse of discretion. State v. Johns, 301 Or 535, 559, 725 P2d 312 (1986).

We conclude that the trial judge did not abuse his discretion. He first found the challenged evidence relevant and probative. He then concluded that a jury could infer that defendant had taken and failed a polygraph examination. Finally, he concluded that State v. Lyon, 304 Or 221, 744 P2d 231 (1987), makes polygraph evidence prejudicial as a matter of law. Consequently, he suppressed the pre-test interview. His decision was within his discretion, and we will not disturb it.

Affirmed.

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779 P.2d 182, 98 Or. App. 305, 1989 Ore. App. LEXIS 1069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hart-orctapp-1989.

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