COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Hodges
Argued at Richmond, Virginia
ROBERT WHITE, JR.
OPINION BY
v. Record No. 2224-02-2 JUDGE JAMES W. BENTON, JR.
JULY 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Learned D. Barry, Judge
Craig S. Cooley for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
This appeal arises from an order finding that Robert White,
Jr. violated his probation and revoking his suspended sentence.
White contends the trial judge erred by admitting evidence of
polygraph test results and finding the evidence sufficient to
prove a probation violation. We agree and reverse the
revocation order.
I.
The record establishes that a judge of the circuit court
convicted White, upon his plea of nolo contendere, of aggravated
sexual battery in violation of Code § 18.2-67.3(1). On March
22, 2000, the judge sentenced White to five years in prison and
suspended four years and seven months of that sentence for a
period of ten years upon various conditions, including good
behavior. The judge also ordered supervised probation upon
White's release from prison.
White's probation officer sent a letter to the trial judge
on September 18, 2001 reporting White had "failed" a polygraph
examination "with very high scores." The letter indicated White
gave "deceptive" answers when asked if he "had secretly tried to
meet" with children, if he had had "physical sexual contact"
with children, and if he had violated conditions of his
probation. The judge issued a capias for White's arrest.
At a hearing convened to consider whether White had
violated probation, White's attorney's objected to any evidence
concerning the polygraph test results. After the trial judge
overruled the objection, the Commonwealth proved by the
probation officer's testimony that White began supervised
probation in March 2000 and met with her once a month. She
testified that White was enrolled in a group counseling program
for sex offenders and had to undergo a polygraph examination
every six months as a requirement for his participation in that
program. The probation officer also testified that White
"passed" his first polygraph examination and "did very well."
In addition, she testified that, apart from the second polygraph
results, White had been a model probationer. The probation
officer's letter of September 18, 2001 was admitted as evidence.
At the conclusion of this evidence, the judge found that he
was "not in a position to take a gamble with this man and young
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children." He found that White had violated his probation and
revoked one year and seven months of White's previously
suspended sentence.
II.
The Supreme Court has not wavered in its rulings concerning
the inadmissibility of polygraph examination results.
In a long line of cases, spanning almost
thirty years, [the Supreme Court has] made
clear that polygraph examinations are so
thoroughly unreliable as to be of no proper
evidentiary use whether they favor the
accused, implicate the accused, or are
agreed to by both parties. See, e.g., Odum
[v. Commonwealth, 225 Va. 123, 301 S.E.2d
145 (1983)]; Skinner [v. Commonwealth, 212
Va. 260, 183 S.E.2d 725 (1971)]; Barber v.
Commonwealth, 206 Va. 241, 142 S.E.2d 484
(1965); Lee v. Commonwealth, 200 Va. 233,
105 S.E.2d 152 (1958). The point of these
cases is that the lie-detector or polygraph
has an aura of authority while being wholly
unreliable.
Robinson v. Commonwealth, 231 Va. 142, 156, 341 S.E.2d 159, 167
(1986).
We do not discern in the various Supreme Court holdings any
basis to conclude, as the Commonwealth urges, that this
inadmissibility rule does not apply in revocation proceedings.
Consequently, applying Robinson, we hold that the trial judge
erred by admitting into evidence the results of the polygraph
examinations.
Without the inadmissible polygraph evidence, the record is
insufficient to support a finding that White violated his
probation. Indeed, the probation officer testified White was
otherwise a model probationer. The trial judge also commented
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that, aside from the polygraph results, White's probation record
was "[b]etter than what [he was] used to seeing."
For these reasons, we reverse the order revoking White's
probation and suspended sentence.
Reversed.
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