dissenting.
I respectfully dissent and would reverse the ruling of the post-conviction court and remand this cause for new trial on the charges of burglary and arson.
Originally, Defendant Gregory Tyra was charged as a co-defendant along with his brother Kenneth Tyra, for the crimes of burglary, arson and theft. However, their trials were severed and Kenneth entered a plea agreement with the State. In part, the agreement provided that Kenneth would plead guilty to burglary and give a statement concerning his knowledge of the charged offenses. In exchange the State agreed to dismiss the counts of arson and theft. The agreement also required Kenneth to submit to and pass a polygraph examination. He "flunked" a portion of the exam and the plea was revoked.
On direct examination by the State, Kenneth testified he and his brother Gregory broke and entered the residence in question and took several items including a gold watch and a radio. Kenneth denied setting the residence afire.
On cross-examination defendant Tyra's trial counsel introduced the plea agreement into evidence and proceeded to impeach Kenneth's testimony by questioning him concerning the terms of the agreement. On re-direct examination the prosecutor elicited testimony from Kenneth that the plea agreement had been revoked because he had failed to pass a polygraph examination. The following exchange occurred:
Q. Now, another provision of that agreement was that you would have to take a polygraph to prove that you had been honest in that statement.
A. Correct.
*927BY [DEFENSE COUNSEL]: Objection as to relevance.
(Record at 205)
BY THE COURT: That objection's overruled.
Q. Isn't that correct?
A. Correct.
BY THE COURT: You're referring to what they call a clean-up statement.
BY THE WITNESS: Right.
Q. And you took such a polygraph, didn't you?
A. Yes, I did.
BY [DEFENSE COUNSEL]: Same objection.
BY THE COURT: That objection will be overruled.
Q. That was given the same day as the statement by Sergeant Dan Pope, Tippecanoe County Sheriff's Department.
A. Yes, it was.
BY [DEFENSE COUNSEL]: Same objection. Judge, could I-?
BY THE COURT: We'll show a continuing objection to this line of testimony, and the same ruling.
Q. Now, isn't it true that another provision of that agreement was that we could, as Prosecutors, nullify the agreement if you hadn't lived up to your end of the bargain, right?
A. Correct.
Q. And we did nullify it, didn't we?
(Record at 206)
A. Yes, you did.
Q. And we nullified it because you flunked the polygraph on the arson, didn't we?
A. I guess so, yes.
(Record at 207).
Counsel made no motion for mistrial, no motion to strike, and no motion to admonish the jury to disregard the polygraph remark.
The law in this jurisdiction is well settled, that because of their inherent unreliability combined with their likelihood of unduly influencing a jury's decision, reference by witnesses or counsel to polygraph test results is inadmissible in criminal prosecutions absent a waiver or stipulation by the parties. Smith v. State (1989), Ind., 547 N.E.2d 817, 820 citing Pavone v. State (1980), 273 Ind. 162, 402 N.E.2d 976.
In the case before us there was no waiyver or stipulation by the parties and reference to the polygraph test was not inadvertent. See Beal v. State (1983), Ind., 453 N.E.2d 190 (witness' unsolicited, voluntary reference to polygraph test did not require reversal). The prosecutor not only questioned Kenneth about the result of the polygraph but specifically mentioned that he "flunked the polygraph on the arson...." It is clear that the prosecutor was attempting to reinforce Kenneth's credibility by demonstrating that he had taken a polygraph test and that he had testified truthfully, especially concerning the burglary, even though he may have lied concerning the arson. In Williams v. State (1978), 268 Ind. 365, 375 N.E.2d 226, 227, our Supreme Court held:
When, as in the case at bar, the State seeks to establish that a witness has taken a polygraph examination in relation to testimony given at trial, there is a high probability that the jury will conclude that the witness is telling the truth and that the accused merely seeks to suppress that truth. This result ... is extremely prejudicial to the accused, especially as in the case at bar where the testimony is essential to link the accused to the crime charged.
The testimony of Kenneth Tyra was critical to the State's case. The State called ten (10) witnesses to testify on its behalf. However, none of the witnesses, with the exception of Kenneth, linked Gregory Tyra to the crimes of burglary and arson. Although the evidence was sufficient to sustain Tyra's conviction for theft, see Tyra v. State (1987), Ind., 506 N.E.2d 1100, Tyra's convictions for burglary and arson could not have been sustained absent the testimony of his brother. Accordingly, Kenneth Tyra's credibility was a critical factor at trial. Under the circumstances, reference to the polygraph examination was inadmissible. Where a trial hinges upon a question of credibility, it is reversible error to deny a motion for mistrial after a damag*928ing reference to polygraph results. Smith, supra, at 821, citing Baker v. State (1987), Ind., 506 N.E.2d 817.
At the post-conviction hearing, trial counsel testified he did not preserve in his motion to correct errors the issue of reference to the polygraph examination because of a strategy to show that Kenneth Tyra was a liar and his testimony therefore was not credible. I would reject counsel's rationale. It is true this court will not speculate about what may have been the most advantageous strategy, and that isolated bad tactics or inexperience do not necessarily amount to ineffective assistance of counsel. McChristion v. State (1987), Ind., 511 N.E.2d 297; Elliott v. State (1984), Ind., 465 N.E.2d 707. However, failure to preserve for appeal an issue of reversible error should not be condoned by this court as an acceptable trial strategy or tactic. Moreover, the same problems are present in the admission of polygraph tests whether the purpose of the admission is to reinforce or to attack the witness' credibility. These problems basically involve the unreliability of polygraph examinations and the danger that juries will give undue weight to their results. Pavone, supra.
I do not suggest that the mere mention of a polygraph examination automatically constitutes reversible error. Indeed, the facts in this case are similar to the facts in the case of Swan v. State (1984), Ind., 462 N.E.2d 68. In Swan, the defendant appealed the denial of his post-conviction petition arguing ineffectiveness of counsel. A key state's witness, an accomplice of defendant, testified to defendant's role in a robbery and murder. The witness' plea bargain agreement which contained reference to a polygraph examination was entered into evidence without objection. Defendant argued that his trial counsel should have either objected to the introduction of the plea, or attempted to excise the reference to polygraphs. Our supreme court recognized that generally the mention that a witness has taken a polygraph examination, absent some form of waiver, will not be permitted. However, the court noted, trial counsel considered the introduction of the plea bargain to be important to his client's defense, and "the state's case did not rest exclusively upon the testimony and credibility of [the state's key witness]". Id. at 71.
In the case before us not only was the witness' plea bargain agreement, with its reference to the polygraph examination, introduced into evidence, but, in addition, the witness testified concerning the results. Unlike Swan, here, the State's case regarding the crimes of burglary and arson rested exclusively upon the testimony and credibility of Kenneth Tyra, the State's key witness. Any presumed importance to Gregory Tyra's defense in mentioning the results of the polygraph examination was vastly outweighed by its undue prejudice.
I believe trial counsel's performance in failing to preserve for appellate review an issue of reversible error was deficient and that Tyra's defense was thereby prejudiced.
In like fashion appellate counsel's performance was also deficient. On appeal, appellate counsel argued only those issues which were set forth in trial counsel's motion to correct errors. However, the motion was inadequate; it failed to include the trial court's reversible error in allowing the State to introduce evidence of the polygraph examination. Further, there was no Belated Motion to Correct Error filed addressing this inadequacy. Ind. Post-Conviction Rule 2(2).
There is no dispute that appellate counsel is not required to argue meritless contentions or contentions which defy the evidence and to which no genuine argument can be made. Williams v. State (1986), Ind., 487 N.E.2d 441, 443. However, appellate counsel is required to examine the record and properly preserve for review substantial appealable issues. Failure to do so constitutes ineffective assistance of appellate counsel. Propes v. State (1990), Ind., 550 N.E.2d 755; Davis v. State (1975), 164 Ind.App. 331, 328 N.E.2d 768.
For the reasons stated, I would reverse the ruling of the post-conviction court and *929remand this cause for new trial on the charges of burglary and arson.