Wingfield v. State

796 S.W.2d 574, 303 Ark. 291, 1990 Ark. LEXIS 452

• Court: Supreme Court of Arkansas
• Decided: October 8, 1990
• Docket: CR 90-70
• Status: Published

Opinions

Jack Holt, Jr., Chief Justice.

On July 19, 1989, the appellant, Jerry Wingfield, was convicted of murder in the first degree and felon in possession of a firearm and sentenced, respectively, to concurrent terms of life and six years in the Arkansas Department of Correction.

Wingfield alleges two points of error on appeal: 1) the trial court erred in failing to grant his motion for mistrial, and 2) the trial court erred in refusing to suppress letters written by him while he was incarcerated. We agree that the trial court erred in failing to grant Wingfield’s motion for mistrial and reverse and remand.

Wingfield initially asserts that the trial court erred in failing to grant his motion for mistrial after a witness referred to a polygraph examination. Upon direct examination of Detective Sergeant J.C. Rider, Fort Smith Police Department, by Wingfield’s attorney, the following exchange occurred:

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Q Okay. Do you remember Frankie [Frank Boyles, Wingfield’s nephew] denying to you that he was involved in the burglary of the house in Oklahoma, where the murder weapon came from?

A He denied that, to start with, when we first spoke with him in the Oklahoma County jail.

Q Okay. Officer, I’m talking about the April the thirteenth statement. That’s the last reported statement that I have—

A Okay.

Q--On the one, two, three, four, five, sixth page. You

asked him did you not: Okay, did you help him [the defendant] on that, referring to the Mason burglary, because he told you that Jerry burglarized the whole house, didn’t he?

A Yes, sir. But, to start with, he had denied even being there.

Q Yes, sir. He denied being there. He denied, first of all, knowing anything about it, denied knowing where the gun came from isn’t that right?

A To start with.

Q Yeah.

A Yes, sir.

Q And I’m talking about April the thirteenth, you’re sitting down — I mean, he’s still in Oklahoma and you went to talk to him. And on this page, he had still told you that Jerry was the [one] who broke in and got everything?

A Yes, sir. And I have to admit that’s probably a mistake on my part for letting that pass, as I did, because earlier in the day, myself and Sergeant Boyd had interviewed him in the jail before taking him to OSBI headquarters for a polygraph. He had —

MR. MARSCHEWSKI: Your Honor, can we approach the bench.

(AT BARSIDE, OUT OF JURY’S HEARING:)

MR. MARSCHEWSKI: I’m going to make a motion for a mistrial at this time. The officer has referred and implied that they took Frankie Boyles to the OSBI headquarters for a polygraph examination. Judge, I think that that is inadmissible. He doesn’t have to say what it’s about. That is an indication that a jury cannot escape that presumption. That’s why the police believe him, is that somehow that’s related to a polygraph examination. I move for a mistrial and ask that the Court grant it.

THE COURT: It will be denied.

MR. MARSCHEWSKI: Well, Your Honor, then I would like to know if I can go to the issue of the polygraph examination.

THE COURT: It’s up to you.

MR. MARSCHEWSKI: He flunked the polygraph examination, is my understanding, although the OSBI has not provided me that information. I would like to have a recess and ask the State to bring down the polygraph examiner, here, to testify today. And they told me that they would have him here.

MR. BELAND [Prosecuting Attorney]: No, Mr. Marschewski. I didn’t tell you, I said I’d try to get in touch with him. Your Honor, the man’s name is Gary Rogers. He’s stationed out of Ada, I’ve not been able to make contact with him. Mr. Marschewski mentioned nothing about him till —

THE COURT: The statement of this officer, so far, has just been he took him to one. I don’t think we’re getting into that, yet; if you want to go into it, you can do it, but I’m not going to recess for anything, Mr. Marschewski. I don’t think it’s got a thing in the world to do with this case.

MR. MARSCHEWSKI: Yes, Your Honor, because it’s my understanding in taking the polygraph, that they asked him about the murder incident and he flunked it. You know, the officer’s implied to the jury that he has taken him down to the polygraph examination and now

THE COURT: I don’t care whether he did or not. In my opinion, it’s not relevant evidence and shouldn’t be inquired into. If you want to and the State doesn’t object to it, I’ll let you go into all of it, you want to but I’m not going to recess and get anybody here.

(BARSIDE CONFERENCE CONCLUDED)

CONTINUED DIRECT EXAMINATION

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Q You know, he’s — you know, talking about being able to get them guns and stuff and saying that he might be able to get some guns and stuff like that. Then he came back and told me how’d he’d gotten those guns and then he got into all that stuff, so, then he was always talkin’ about going to Cushing, over to Pat’s. Now, is that right?

A Well, that’s what he told me at the time, sir, but it’s like I told you I made a mistake probably in letting that slide, letting that statement slide and pursuing it any further.

Q You mean not confronting him and telling him that he’s lying to you right then?

A Yes, sir, I let that slide. But he had told me the truth earlier in the day before he ever took the polygraph test about the burglary.

Q You mean he took a polygraph test about the burglary?

A No. He took a polygraph test concerning the homicide.

MR. MARSCHEWSKI: Your Honor —

THE COURT: Mr. Marschewski, you’re asking him about these things.

MR. MARSCHEWSKI: I didn’t ask him about that, Your Honor.

THE COURT: You should have guided him more in his testimony, Mr. Marschewski. Ladies and Gentlemen, whether or not this man took a polygraph test, what its results were is not admissible into evidence. It doesn’t have anything to do with this trial. You’re the searchers of the truth, here, and what you find to be the truth is what it’s going to be.

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Arkansas law prohibits the admission of polygraph test results, except upon a written stipulation of the parties. See Ark. Code Ann. § 12-12-704 (1987); Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989) (citing Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), cert. denied, 482 U.S. 929 (1987)). Relying on Johnson v. Florida, 166 So. 2d 798 (Fla. 1964), we have also held that any reference to a polygraph test, in the absence of an agreement or other justifiable circumstances, ordinarily constitutes prejudicial error. (Emphasis added.) See Roleson v. State, 272 Ark. 346, 614 S.W.2d 656 (1981) (citing Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980)).

We conclude now, however, that our holdings in Roleson v. State, supra, and Van Cleave v. State, supra, were overbroad and take this opportunity to clarify our position on references to polygraph examinations. While neither the results of a lie detector examination nor testimony that indirectly or inferentially apprises a jury of the results of a lie detector examination are admissible, the fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences might be raised as to the result are not prejudicial. See Johnson v. Florida, supra.

Consequently, a witness’s veracity can not be bolstered or discredited by proof of his taking or refusing a lie detector test, and evidence of a witness’s willingness or reluctance to be examined is also prejudicial and inadmissible to prove consciousness of innocence or of guilt. Id..

It is axiomatic that a mistrial is an extreme and drastic remedy that should only be resorted to when there has been an error so prejudicial that justice could not be served by continuing the trial. The sound discretion of the trial court should not be disturbed unless abuse , of that discretion is shown. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980).

Here, there was no agreement between the parties as to the mention of the polygraph tests or their results, nor were there circumstances which justified a reference to polygraph tests. Further, the two references to a polygraph test, under the facts of this case, make obvious Officer Rider’s attempt to bolster the veracity and credibility of Frank Boyles’s testimony and thereby constitutes prejudicial error. See also Foster v. State, supra. The State’s argument that Wingfield invited the introduction of the error by eliciting Officer Rider’s mention of the polygraph test is without merit. To the contrary, a review of the verbatim testimony between Wingfield’s counsel and Officer Rider reveals that the references to a polygraph test were not responsive to the questions asked.

Wingfield made a timely objection to Officer Rider’s first mention of a polygraph test in connection with Frank Boyles. The trial court’s allowance of additional references to polygraph tests compounded its error, and the trial court’s admonition to the jury as to the inadmissibility into evidence of whether Frank Boyles had taken a polygraph test, or what the results of that test might have been, did not cure the resulting prejudice suffered by Wingfield. See Roleson v. State, supra. Consequently, the trial court abused its discretion in denying Wingfield’s motion for a mistrial.

Accordingly, we need not address Wingfield’s second point of error, and we reverse and remand.

Hays, Glaze and Turner, dissent.