STATE
v.
David FOYE, Jr., and Charles Herbert Williams.
No. 80.
Supreme Court of North Carolina.
May 24, 1961.*170 T. W. Bruton, Atty. Gen., G. A. Jones, Jr., Asst. Atty. Gen., for the State.
Kennedy W. Ward, New Bern, for defendant appellant.
WINBORNE, Chief Justice.
The evidence in the present case, when considered in the light most favorable to the State, is sufficient to warrant submitting the case to the jury and to support the verdict and judgment. Where the dead body of a person is found with marks of violence upon it or other circumstances that indicate that the deceased came to his death by violent means, proof of such fact, independent of defendant's confession, establishes corpus delicti. The defendant Williams, by his confession, admitted meeting defendant Foye, and being present at the time the murder was committed. He is also shown to have entered into an agreement with Foye to rob the deceased. Hence the assignment of error directed to the court's refusal to allow defendant's motion for judgment as in case of nonsuit (G.S. § 15-173) is overruled. State v. Downey, 253 N.C. 348, 117 S.E.2d 39; State v. Haddock, 254 N.C. 162, 118 S.E.2d 411.
However, upon a thorough examination of the record we are of the opinion that the defendant is entitled to a new trial on two grounds: I. The first error relates to the admission of certain evidence concerning a lie detector test given both defendants. In this connection Deputy Sheriff Edwards, under cross-examination by counsel for the defendant Foye testified as follows:
"Q. Now, did you take David Foye to Raleigh last week to give him a lie detector test? A. Yes, sir.
*171 "Q. Did you talk with David on your way to Raleigh? A. No, sir, didn't talk too much with David, and we did not have any conversation on the way to Raleigh.
"Q. Was he given a lie detector test? A. Yes, sir.
"Q. Were you where you could hear what was said on the questioning while he was being given the test? A. Yes, sir.
"Q. Who operated the machine in Raleigh? A. Mr. John Boyd.
"Q. He is a recognized expert in connection with operating a lie detector machine, is he not? A. Yes, sir.
"Q. Did David Foye, while then and there being given the test make substantially the same statements to Mr. Boyd that you testified to here this morning? A. Yes, sir.
"Q. Would you tell the court and the jury the result of that test? A. I can tell you what Mr. Boyd told me; he said that David Foye had told the truth.
"Q. And that the machine so indicated? A. Yes, sir."
Upon direct examination by the solicitor, Deputy Sheriff Edwards testified as follows concerning the lie detector test:
"Q. Who else, if anyone, went to Raleigh with you? A. Myself, Deputy Sheriff Taylor, FBI Agent John Edwards.
"Q. Well, did the defendant Charles Williams also go? A. Yes, sir, Charles Williams went, and David Foye.
"Q. And was he likewise interviewed by Mr. Boyd? A. Yes, sir."
Thereafter, defendant Foye, testifying in his own behalf brought out the following evidence:
"Q. Now, you were carried to Raleigh last week? A. Yes, sir.
"Q. They sat you down in this contraption up there that looked like one of Rube Goldberg's inventions. A. Yes, sir.
"Q. When you took your seat at that lie detector machine, were you questioned by Mr. Boyd, the operator of the machine? A. Yes, sir.
"Q. Did he ask you the same questions in substance that I've asked you here on the stand? A. Yes, sir.
"Q. Did you give him substantially the same answers that you have given me? A. Yes, sir."
In each instance the trial judge instructed the jury to apply the evidence only to the defendant Foye and renewed the admonition concerning the use of the lie detector evidence as to the defendant Williams in the final charge. These statements with reference to the lie detector test as introduced into this case were highly prejudicial to the defendant Williams and in our opinion constituted prejudicial error. It is of such a character that it cannot be purged of its harmful effect by an admonition to the jury.
The courts of this country, in the absence of stipulation, have uniformly rejected the results of lie detector tests when offered in evidence for the guilt or innocence of one accused of a crime, whether the accused or the prosecution seek its introduction. See 23 A.L.R. 2d 1306 and 1960 A.L.R.2d Supplement Service p. 1998.
The reason most commonly assigned for the exclusion of such evidence is the contention that the lie detector has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. Tyler v. United States, 90 U.S.App.D.C. 2, 193 F.2d 24, certiorari denied 343 U.S. 908, 72 S. Ct. 639, 96 L. Ed. 1326; Henderson v. State, 94 Okla. Crim. 45, *172 230 P.2d 495, certiorari denied 342 U.S. 898, 72 S. Ct. 234.
The courts have also ruled inadmissible testimony in regard to lie detector tests on various other grounds: (1) On the ground that no expert evidence had been introduced in the particular case showing a general scientific recognition of the efficacy of such tests. People v. Becker, 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171; People v. Forte, 279 N.Y. 204, 18 N.E.2d 31, 119 A.L.R. 1198.
(2) On the ground that the admission of lie detector tests would distract the jury. State v. Cole, 354 Mo. 181, 188 S.E.2d 43, 189 S.E.2d 541.
(3) On the ground that it would permit the defendant to have extra-judicial tests made without the necessity of submitting to similar tests by the prosecution. State v. Bohner, 210 Wis. 651, 246 N.W. 314, 86 A.L.R. 611.
(4) On the ground that the lie detecting machine could not be cross-examined. State v. Lowry, 163 Kan. 622, 185 P.2d 147; Boeche v. State, 151 Neb. 368, 37 N.W.2d 593; State v. Bohner, supra.
Furthermore, these authorities show that the lie detector tests prove correct in their diagnosis in about 75% of the instances used. In other words, such factors as mental tension, nervousness, psychological adnormalities, mental abnormalities, unresponsiveness in a lying or guilty subject account for 25% of the failure in the use of the lie detector. See Inbau, Lie Detection and Criminal Interrogation, 2nd Ed. (1948).
Hence, we are of opinion that the foregoing enumerated difficulties alone in conjunction with the lie detector use presents obstacles to its acceptability as an instrument of evidence in the trial of criminal cases, notwithstanding its recognized utility in the field of discovery and investigation, for uncovering clues and obtaining confessions. This conclusion is in line with the weight of authority repudiating the lie detector as an instrument of evidence in the trial of criminal cases.
One of the recent cases stating a reason for the denial of the use of lie detector results in evidence is that of Lee v. Commonwealth, 200 Va. 233, 105 S.E.2d 152, 155, wherein it is said: "While there are several valid reasons for the exclusion of the evidence showing the result of the test in this instance, suffice it to say that such tests generally have not as yet been proved scientifically reliable * * *." See also State v. Hollywood, Mont., 358 P.2d 437.
These devices are unlike the science of handwriting, fingerprinting, and X-Ray, which reflect demonstrative physical facts that require no complicated interpretation predicated upon the hazards of unknown individual emotional differences, which may and oftentimes do result in erroneous conclusions. See Inbau, supra.
One exception to the majority rule is People v. Kenny, N.Y.Queens C.C.Ct.1938, 167 Misc. 51, 3 N.Y.S.2d 348. There a lower court admitted a lie detector test into evidence. However, in that case the defendant was acquitted and there was no opportunity for a review of the trial court's ruling. In a later case, People v. Forte, supra, the New York Court of Appeals made the Kenny case questionable precedent. The Court said: "We cannot take judicial notice that this instrument is or is not effective for the purpose of determining the truth * * * The record is devoid of evidence tending to show a general scientific recognition that the pathometer possesses efficacy * * *." [279 N.Y. 204, 18 N.E.2d 32].
Moreover, the parties should not be permitted to introduce lie detector results into evidence by indirection. People v. Aragon, 154 Cal. App. 2d 646, 316 P.2d 370; People v. Wochnick, 98 Cal. App. 2d 124, 219 P.2d 70; Leeks v. State, 95 Okla. Crim. 326, 245 P.2d 764.
The trial court in the present case, by allowing the lie detector evidence *173 through the examination of Deputy Sheriff Edwards and defendant Foye as set out above, did indirectly what would be highly improper if done directly. It was designed to leave the inference that the defendant Foye was telling the truth about the whole matter and amounted to informing the jury of the results of the lie detector tests.
Therefore, despite the instructions of the court, the conclusion is that the evidence of the results of the lie detector test was indelibly implanted in the minds of the jurors and had a prejudicial effect.
II. The second error relates to the court's charge upon the question of alibi. The court charged the jury as follows: "I want to define to you alibi. The definition of alibi, which literally means elsewhere, not only goes to the essence of the guilt of the accused person, but it traverses one of the material ingredients in the bill of indictment, namely, that the prisoner did then and there commit the particular act charged. It is not an affirmative or stringent definition and an alibi upon the idea that the accused was elsewhere at the date of the act does, of course, thoroughly established, preclude the possibility of guilt. It is enough if the evidence adduced in support of it viewed in connection with all the testimony in the case created such a probability of its truth as to raise a seasonable doubt of the defendant's guilt.
"After a consideration of all the evidence if the jury entertains a reasonable doubt of the defendant's presence at and participation in the crime they should return a verdict of not guilty. The fact that a prisoner relies upon alibi which means elsewhere and could not have been at the place of the crime when it was committed if he was elsewhere at the time is that he is not required to satisfy you of the alibi beyond a reasonable doubt, but if you ladies and gentlemen are satisfied from the evidence that he was not at the place when the crime charged against him was committed and as charged in the bill of indictment, then a verdict of not guilty should be returned."
This instruction fails to make clear who has the burden of proof, the defendant or the State, when the former relies on alibi as a defense. In State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 851, 31 A.L.R. 2d 682, Ervin, J., said: "An accused, who relies on an alibi, does not have the burden of proving it. It is incumbent upon the State to satisfy the jury beyond a reasonable doubt on the whole evidence that such accused is guilty. If the evidence of alibi, in connection with all the other testimony in the case, leaves the jury with a reasonable doubt of guilt of the accused, the State fails to carry the burden of proof imposed upon it by law, and the accused is entitled to acquittal." This being true, the charge as to alibi is not in accord with the approved precedents. State v. Sheffield, 206 N.C. 374, 174 S.E. 105; State v. Bridgers, 233 N.C. 577, 64 S.E.2d 867; State v. Minton, supra; State v. Stone, 241 N.C. 294, 84 S.E.2d 923.
Finally, while there is in the record no exception in respect thereto, it is appropriate to call attention to the fact that the verdict of the jury is not in keeping with the language of the statute G.S. § 14-17. There is no such crime in this State as "murder in the first degree with recommendation of mercy." The correct expression is "recommendation of imprisonment for life in the State's prison." In the instant case the court correctly charged the jury, but the verdict as recorded is "recommendation of mercy." See State v. Denny, 249 N.C. 113, 105 S.E.2d 446, 447. This error may not occur upon another trial.
For reasons stated let there be a
New trial.