STATE of North Carolina
v.
Frank Edward MILANO.
No. 17.
Supreme Court of North Carolina.
July 12, 1979.*159 Shelley Blum, Charlotte, for defendant.
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Rudolph A. Ashton, III, Raleigh, for the State.
COPELAND, Justice.
For the reasons stated below, we find no error in defendant's trial.
In his first assignment of error, the defendant claims he was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
In a case dealing with a guilty plea entered on counsel's advice, the United States Supreme Court has stated that the gauge of effective assistance of counsel is not "whether a court would retrospectively consider counsel's advice to be right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 (1970). Speaking of constitutionally ineffective representation claims, this Court has said:
"The Courts rarely grant relief on the grounds here asserted, and have consistently required a stringent standard of proof on the question of whether an accused has been denied Constitutionally effective representation. We think such a standard is necessary, since every practicing attorney knows that a `hindsight' combing of a criminal record will in nearly every case reveal some possible error in judgment or disclose at least one trial tactic more attractive than those employed at trial. To impose a less stringent rule would be to encourage convicted defendants to assert frivolous claims which could result in unwarranted trial of their counsels." State v. Sneed, 284 N.C. 606, 613, 201 S.E.2d 867, 871-72 (1974).
This defendant was represented at trial by two privately retained attorneys, Mr. Joel L. Kirkley and Mr. William J. Eaker. He cites several ways in which he feels his trial counsel were inadequate.
The defendant first complains that his counsel did not request a voir dire concerning Mr. and Mrs. Monette's and Ms. Flippin's identification of him as the man they saw on 17 May 1978. All these witnesses had an ample opportunity to view the defendant. This Court has previously dealt with an ineffective representation claim based on an attorney's failure to request a voir dire concerning a witness' in-court identification, the law of which equally applies to this case:
"The record indicates no impermissible pre-trial identification procedures. While the defendant's counsel did not request a voir dire examination of the prosecuting witness before she was permitted to identify the defendant in court as her assailant, the record indicates no basis for the belief that such an examination would have tainted her in-court identification.. . . Under these circumstances, the failure of counsel to demand a voir dire examination of the prosecuting witness, prior to her in-court identification, cannot *160 be deemed such evidence of ineffective assistance of counsel as to warrant the granting of a new trial." State v. Mathis, 293 N.C. 660, 670-71, 239 S.E.2d 245, 252 (1977).
The defendant next argues that his attorneys should have required a voir dire examination regarding the searches of defendant's apartment and car, which resulted in the seizures of the gun and the holster that were introduced into evidence at trial. The record shows, however, that these searches were both pursuant to search warrants. Furthermore, the defendant's own testimony on direct examination indicates that he consented to the search of his apartment. Under these facts, we must find that the searches were reasonable. Defense counsel are not required to make frivolous motions or objections to every search regardless of the underlying circumstances. See Sallie v. North Carolina, 587 F.2d 636 (4th Cir. 1978).
The defendant asserts that his counsel were constitutionally ineffective because of the way they handled certain witnesses, either by failing to object to certain testimony or by their own "inept cross-examination."
These claims must fail as grounds for granting the defendant a new trial. Several federal courts have suggested that courts look to the ABA Standards Relating to the Defense Function as "a reliable guide for determining the responsibilities of defense counsel." Marzullo v. Maryland, 561 F.2d 540, 547 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 56 L.Ed.2d 394, 98 S.Ct. 1885 (1978). See also United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). Section 5.2(b) of the ABA Standards Relating to the Defense Function (App. Draft 1971) states that "[t]he decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client." Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are "not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness." Sallie v. North Carolina, supra at 640. Moreover, even if some of the evidence of which defendant now complains may have been excluded had his counsel objected to it at trial, defendant has not shown any prejudice to him from its admission in light of the overwhelming evidence against him. See generally Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
As this Court noted in State v. Sneed, supra, an ineffective representation claim is normally raised in post-conviction proceedings, where the defendant may be granted a hearing on the matter with the opportunity to introduce evidence. When the assertion is made before an appellate court on direct review of a criminal conviction, however, that court is necessarily bound by the record of the trial proceedings below. See generally Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 N.W.U.L.Rev. 289 (1964). On the record before us, we cannot find that defendant was denied constitutionally effective representation at trial. This assignment of error is overruled.
The defendant claims the trial court erred in restricting the scope of his cross-examination of certain of the State's witnesses. We do not agree.
The defendant argues that the court erred in sustaining the State's objections to questions he asked Mrs. Monette concerning her employment history and an abortion she had had several years ago. It appears in the record that the witness later testified before the jury about her past jobs; therefore, the defendant cannot complain of the original exclusion of this evidence. See, e. g., State v. Lewis, 281 N.C. 564, 189 S.E.2d 216 (1972), cert. denied, 409 U.S. 1046, 34 L.Ed.2d 498, 93 S.Ct. 547 (1972).
Mrs. Monette stated during cross-examination that "I had an abortion when I was seventeen years old in 1975." The defendant *161 then asked her how many months pregnant she was when she had the abortion. The court sustained the State's objection to this question. The jury was sent out of the courtroom, and after hearing counsels' arguments on the matter, the court ruled that "the Court finds that the evidence in reference to the alleged abortion is irrelevant to this offense and the Court hereby orders that such evidence is incompetent and inadmissible pursuant to G.S. 8-58.6."[1]
This Court has said that "`[t]he limits of legitimate cross-examination are largely within the discretion of the trial judge, and his ruling thereon will not be held for error in the absence of showing that the verdict was improperly influenced thereby'." State v. Chance, 279 N.C. 643, 652, 185 S.E.2d 227, 233 (1971), death penalty vacated in 408 U.S. 940, 92 S.Ct. 2878, 33 L.Ed.2d 764 (1972). (Citations omitted.) Furthermore, the answer the witness would have given had she been permitted to reply to the question is not in the record; therefore, we cannot tell whether the court's ruling prejudiced the defendant in any way. See, e. g., State v. Robinson, 280 N.C. 718, 187 S.E.2d 20 (1972). In light of these facts, we do not deem it necessary to rule on defendant's argument that G.S. 8-58.6 unconstitutionally limits a defendant's right to confront the witnesses against him.
During trial the court also sustained the State's objections to a question asked of a policeman concerning "the inherent danger" of a show-up identification and a question posed to the lie detector examiner relating to the admissibility of a polygraph test in court. It was entirely proper for the trial judge to sustain these objections because they called for improper conclusions by the witnesses on questions of law. See generally State v. Griffin, 288 N.C. 437, 219 S.E.2d 48 (1975), death penalty vacated in 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976).
Pursuant to defendant's motion for discovery, the court entered an order on 14 September 1978 relating to certain matters it deemed the State should disclose to the defendant. In the middle of trial, on 19 September 1978, the court held a hearing on defendant's claim that the State did not completely comply with that order. After the hearing the court ruled that "the Court is not specifically finding that the State has failed to comply with the order . . . , but out of an abundance of precaution, the Court is ordering that the defendant be permitted to inspect and examine [everything the defendant was then asking for]." The defendant was permitted to copy all reports and statements and view all photographs. At defendant's request, this was all done at the end of a court day rather than the next morning so he would have an opportunity to prepare for court. The able trial judge also gave the defendant the right to recall any witnesses he desired.
*162 G.S. 15A-910 sets forth a variety of sanctions a court may employ when a party fails to comply with discovery. G.S. 15A-910(1) authorizes the court to "[o]rder the party to permit the discovery or inspection," which was done in this case. Chief Justice Sharp, speaking for this Court, has stated that "the choice of which [sanction under G.S. 15A-910] to apply if any rests entirely within the discretion of the trial judge. His decision will not be reversed except for abuse of that discretion." State v. Stevens, 295 N.C. 21, 37, 243 S.E.2d 771, 781 (1978). There has been no such abuse in this case. This assignment of error is overruled.
On 14 September 1978 the defendant, his attorney and the assistant district attorney working on this case entered into the following stipulation:
"[T]he defendant voluntarily, knowingly and understandingly entered into a stipulation whereby the defendant agreed that Mr. Holmberg was to administer a polygraph test to him and that if the results of such polygraph test were conclusive, either the State or the defendant could offer such evidence in the trial of the case."
The defendant now contends that the trial court erred in admitting the results of the test, regardless of his previous stipulation.
Before the results of the lie detector test were admitted into evidence, an extensive voir dire was conducted concerning the qualifications of the examiner, Mr. Holmberg, the conditions under which the test was conducted and the results of it. The trial court ruled that the results be admitted into evidence, and it made extensive findings of fact and conclusions of law, none of which are disputed by the defendant.
The defendant's argument on this issue must fail. It is clear that in North Carolina the results of a polygraph examination are not admissible in evidence absent a valid stipulation by the parties. State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961). When a defendant voluntarily and knowingly enters into a valid stipulation concerning the admissibility of a lie detector test, however, the trial court has the discretion to admit the results into evidence, depending upon the examiner's qualifications and the conditions under which the test was administered. State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (1975). See also State v. Williams, 35 N.C.App. 216, 241 S.E.2d 149 (1978), cert. denied, 294 N.C. 739, 244 S.E.2d 156 (1978). In this case the trial court specifically found that Mr. Holmberg was "an expert in the conduction and interpretation of a polygraph test and its results" and that "the polygraph test was administered under proper conditions . . and the results thereof are reliable." All the safeguards set forth in State v. Steele, supra, were followed. Thus, the trial court did not err in admitting into evidence the results of the lie detector test.
The defendant also claims the trial court's instructions concerning the results of the polygraph examination were erroneous. We do not agree.
The law is clear that even if the results of a polygraph examination are properly admitted at trial, that evidence cannot be used to show a defendant's guilt or innocence of the crime charged; it may only be used as evidence relating to a defendant's credibility. State v. Steele, supra. The trial court instructed the jury on this matter as follows:
"There is evidence tending to show that the Defendant, Mr. Frank Milano, voluntarily submitted to a polygraph or lie detector test. You may not consider this test in determining whether he is guilty. You may consider the results of this test along with all other facts and circumstances in determining whether the defendant, Mr. Frank Milano, was telling the truth at the time the test was administered."
This instruction was entirely proper. See State v. Steele, supra.
At trial the defendant attempted to get the results of a psychological stress evaluation that had been administered to him into evidence. A thorough voir dire *163 was conducted on this matter, and the court ruled the evidence inadmissible. In addition to finding that there had been no stipulation between the State and the defendant as to the test's admissibility, the court found that "there is no sufficient legal basis in this state to make such psychological stress test competent evidence" and that "the reliability of such a psychological stress test has not been sufficiently established to make it competent evidence in this state."
We need not decide whether the psychological stress evaluation has attained "scientific acceptance as a reliable and accurate means of ascertaining truth or deception." State v. Foye, supra 254 N.C. at 708, 120 S.E.2d at 171. Assuming, arguendo, that the test has reached such a level, it certainly must meet at least the same requirements that have been applied to polygraph examinations in North Carolina, one of which is that there be a written stipulation by the parties as to its admissibility at trial. This assignment of error is without merit.
After the court finished instructing the jury in this case, he asked both the State and the defendant "whether there are any suggested additional instructions, corrections or modifications." Both parties indicated that they wanted no additional instructions. The defendant now argues that the trial court erred in not instructing the jury on eyewitness testimony.
"The omission to which defendant points by this assignment of error does not concern a substantive feature of the case, and defense counsel did not call this omission to the attention of the trial judge even when he inquired of defense counsel if there were other requested instructions." State v. Small, 293 N.C. 646, 659-60, 239 S.E.2d 429, 438 (1977). Furthermore, the court did fully instruct the jury on defendant's defense of alibi, including a charge that "if upon considering all the evidence in the case, including the evidence with respect to alibi, you have a reasonable doubt as to the defendant's presence at or participation in the crime charged, you must find [the defendant] not guilty." Although it perhaps would have been the better practice for the trial court to have included an instruction on eyewitness testimony in this case, its failure to do so without a request by defendant did not constitute prejudicial error. This assignment of error is overruled.
We have examined defendant's three remaining assignments of error, Nos. 7, 8, and 9, and find them without merit.
For the foregoing reasons, we find that defendant had a trial free from prejudicial error.
NO ERROR.
EXUM, Justice, dissenting:
To admit in evidence against defendant the results of a polygraph examination which he "failed" while at the same time excluding from evidence the fact that defendant "passed" a psychological stress evaluation was so fundamentally unfair in the context of this case as to deny defendant due process of law under the rationale of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Chambers defendant was tried and convicted of the murder of one "Sonny" Liberty. The shooting of Liberty, a policeman, allegedly occurred in a barroom which Liberty had entered to execute an arrest warrant for one C. C. Jackson. Liberty was shot three times in the back. He then fired his riot gun into an alley from which the shots appeared to have come. One of these shots struck Chambers as he ran down the alley. Chambers was ultimately charged with and convicted of Liberty's murder. At trial Chambers' defense was not only that he did not shoot Liberty but that one Gable McDonald had actually done the shooting. Prior to Chambers' trial McDonald had confessed to the shooting. McDonald had subsequently repudiated this confession, however, saying he confessed at the importuning of one Reverend Stokes who had promised him that he would not go to jail and would share in the proceeds of a lawsuit Chambers would bring against the town where the shooting occurred.
*164 At Chambers' trial he called McDonald as a witness and through him was able to get admitted into evidence McDonald's written, sworn, out-of-court confession. The state on cross-examination elicited from McDonald the fact that he had repudiated his confession and his reasons for doing so. After the state's cross-examination Chambers renewed an earlier motion to examine McDonald as an adverse witness. This motion was denied on the basis of Mississippi's "voucher rule" which precluded a party from cross-examining his own witness unless the witness testified adversely to the party calling him. Since McDonald had not, under Mississippi's rule, testified adversely to Chambers, Chambers was denied the opportunity to cross-examine him. Chambers also sought to offer the testimony of three witnesses to whom McDonald had admitted shooting liberty. This testimony was not allowed at trial. On the basis of Mississippi's voucher and hearsay rules, respectively, the Mississippi Supreme Court found no error in either of these rulings.
In the United States Supreme Court defendant contended "that the application of these evidentiary rules rendered his trial fundamentally unfair and deprived him of due process of law." The United States Supreme Court, with only Justice Rehnquist dissenting on a procedural ground, agreed with this contention. While it was critical of the Mississippi rules of evidence it nevertheless recognized that they were the rules which had been traditionally applied by the Mississippi Supreme Court. Nevertheless the United States Supreme Court concluded that the application of these evidentiary rules under the circumstances denied Chambers "a trial in accord with traditional and fundamental standards of due process." 410 U.S. at 302, 93 S.Ct. at 1049. It said further, id. at 302-03, 93 S.Ct. at 1049:
"In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial."
In the case before us defendant offered the testimony of Mr. Andy Nichols, an instructor in the Criminal Justice Department of Central Piedmont Community College in Charlotte, to the effect that on 16 August 1978 Nichols had examined defendant using a psychological stress evaluator (sometimes called an audio stress evaluator). This test indicated that defendant was telling the truth when he denied being involved in a sexual encounter with Mrs. Monette. It was stipulated that Nichols was a qualified expert in such examinations. The testimony of Nichols together with other evidence offered by defendant on the question indicated that the psychological stress evaluator was a device for measuring stress in the human voice and that as a "lie detection" device it was as reliable, if not more reliable, than the polygraph. All evidence relating to this examination was ruled inadmissible by the trial judge.
After defendant rested the state was permitted to offer in rebuttal the testimony of W. O. Holmberg, a police officer with the City of Charlotte. He testified that on 14 September 1978 he examined defendant using a polygraph and that in his opinion, based on the polygraph examination, defendant "indicated deception" when he denied a sexual encounter with Mrs. Monette.
It was brought out on a voir dire hearing that after defendant "passed" the psychological stress evaluator text administered by Nichols, he and the state stipulated that he would submit to a polygraph examination to be administered by Holmberg and, further, that the results of the polygraph examination would be admissible in evidence whether offered by the state or the defendant.
This Court has consistently held that polygraph examination results are inadmissible. State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975); State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. *165 Foye, 254 N.C. 704, 120 S.E.2d 169 (1961). In Foye defendant was given a new trial because the introduction of testimony that a "lie detector" test administered to him indicated that he was telling the truth when he confessed to the murder with which he was charged. The reasons given in Foye for excluding the results of polygraph tests were: (1) there is no "general scientific recognition of the efficacy of such tests"; (2) such evidence distracts the jury from the real questions before it; (3) "it would permit the defendant to have extra-judicial tests made without the necessity of submitting to similar tests by the prosecution"; and (4) "the lie detecting machine could not be cross-examined." 254 N.C. at 708, 120 S.E.2d at 172. The decision and reasoning of Foye were reaffirmed in Brunson in which this Court noted that "[t]he weight of authority still supports that decision." 287 N.C. at 445, 215 S.E.2d at 100.
The Court of Appeals in State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (1975), held that under certain circumstances, which included a stipulation of admissibility, polygraph examination results could be admitted. This Court, until the majority's decision today, has never so held. I agree with the majority that the conditions precedent to admissibility of polygraph results as set out in Steele were followed here. I also agree with the majority's acceptance of the Steele decision itself.
The trial court, relying essentially on the stipulation of admissibility voluntarily entered into by the defendant and his voluntary participation pursuant thereto in the polygraph examination, ruled that testimony regarding it was admissible. Because, however, of the absence of a similar stipulation regarding the psychological stress evaluator test the trial court ruled that its results were inadmissible.[1]
Defendant's counsel should have insisted that the admissibility stipulation, if made at all, include both tests. I concede that because the admissibility stipulation did not include the psychological stress evaluator examination the trial court, from the strict standpoint of our law of evidence, ruled correctly as to both tests. The effect, however, of these rulings was so fundamentally unfair in the context of other evidence in this case as to deny defendant due process of law. To insure that fairness in the proceeding which our constitutions demand the trial judge should have either (1) exercised his discretion to rule inadmissible evidence relating to the polygraph or (2) recognized that strict application of the rules of evidence would, under these circumstances, deny due process to defendant and admitted results of both tests.
I stress as did the United States Supreme Court in Chambers the factual context in which the evidentiary questions arose. Defendant here has consistently denied his guilt both prior to trial and as a witness at trial. He put up a strong, affirmative defense which included a corroborated alibi; evidence of his good character and lack of any prior criminal activity; a reasonable explanation of his possession of the firearm; testimony by Lynn Feldman Milano, then his girl friend and now his wife, that she was physically present with him at the time the incident with Mrs. Monette allegedly occurred; and evidence of a painful injury to his groin the evening before the incident in question. All of this, if believed, renders defendant an extremely unlikely rapist.
On the other hand the state's evidence, while seemingly strong, raises, in my judgment, nagging doubts upon close examination. At the heart of the dispute in this case was whether defendant had, in fact, driven his automobile sometime after 11:00 a. m. on 17 May 1978 to the apartment complex of Mrs. Monette. Defendant claimed the car was last driven between *166 6:30 and 7:00 a. m. and told police it was in the same position when they found it as it was when he parked it in the early morning hours. Police located his car between 11:30 a. m. and 12:00 Noon. At that time had the car been recently driven its engine would have been warm. Yet the state offered no evidence that the engine was warm or that it had or had not been checked for warmth by the investigating police.
Further, Mrs. Monette identified her assailant to police as being stockily built, five feet eight inches tall with dark hair and brown eyes. She told Dr. Robertson that he was five feet ten inches tall and weighed 165 pounds. In fact defendant was five feet five inches tall, weighed 140 pounds and had hazel eyes. Moreover, Dr. Robertson found no evidence of trauma to Mrs. Monette's genitalia and no real evidence of recent sexual intercourse.
The strength of the state's case as opposed to defendant's was, of course, for the jury and not this Court to weigh and consider. I mention it to show only that the case is not "open and shut" on the question of whether a rape occurred; if anything, it is even closer on whether defendant was indeed the rapist. It comes down to a question of which side the jury believes. In this context, evidence of defendant's failure of a polygraph examination was devastating to his defense and, in effect, insured his conviction. Whether admission of this evidence coupled with exclusion of evidence that he had passed a psychological stress evaluation denied him that fundamental fairness which constitutional due process demands is a question which this Court should address notwithstanding the trial court's technically correct application of our rules of evidence. Having addressed it, I am satisfied defendant, like Chambers, was denied due process and is entitled to a new trial.
NOTES
[1] G.S. 8-58.6 states in pertinent part:
"Restrictions on evidence in rape cases.(a) As used in this section, the term `sexual behavior' means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.
(b) The sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
(c) No evidence of sexual behavior shall be introduced at any time during the trial of a charge of rape or any lesser-included offense thereof, nor shall any reference to any such behavior be made in the presence of the jury, unless and until the court has determined that such behavior is relevant under subsection (b)."
[1] The trial court's conclusions that "there is no sufficient basis in this state to make such psychological stress test competent evidence" and "the reliability of such . . . test has not been sufficiently established to make it competent evidence" are, as the majority notes, not determinative. The same conclusions would appertain, in this state, to the polygraph. All the evidence in this record is that the psychological stress evaluation is as reliable, if not more so, than the polygraph.