NO. 93-158
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Appellant,
v.
BOBBY K. CRAIG,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana; Patrick L. Paul, Cascade
County Attorney, Great Falls, Montana
For Respondent:
John Keith, Attorney at Law,
Great Falls, Montana
Submitted on Briefs: September 16, 1993
Decided: December 6, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
The State of Montana appeals from a decision of the Eighth
Judicial District Court, Cascade County, granting defendant's
motion to suppress his confession made following a post-polygraph
interview.
We affirm.
The State raises the following issue:
Did the District Court err in granting defendant's motion to
suppress a statement given by defendant following a pol.ygraph
examination?
Defendant is accused of sexually assaulting his 11-year-old
step-granddaughter on July 12, 1992, while on a family fishing
excursion in Great Falls. Defendant does not have an existing
criminal record.
Defendant was first questioned concerning the allegations on
August 7, 1992, by Detective Bellusci. At that time, the detective
advised defendant of his rights pursuant to Miranda v. Arizona
(1965), 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The
detective again spoke with defendant on August 26, 1992, to
schedule a time for a polygraph examination.
On August 28, 1992, defendant went to the Great Falls Police
Station at the request of Detective Bellusci. However, defendant
contends he did not know at that time that he would be subjected to
a polygraph examination. Detective Bellusci explained to defendant
that the results of the polygraph were not admissible as evidence.
Prior to the interview and polygraph examination, Officer Theisen,
2
a certified polygraph examiner, gave defendant a Miranda warning
and defendant signed a waiver and consent form. Officer Theisen
conducted a background interview prior to the Polygraph
examination. The background interview revealed that defendant had
six and a one-half hours of sleep before taking the polygraph,
although at the time of the hearing, defendant contended that he
had only one hour of sleep. The exam lasted for two hours and
fifteen minutes.
At the conclusion of the polygraph examination, Officer
Theisen told the defendant the polygraph indicated he had lied, and
then began questioning him. Officer Theisen then called in
Detective Bellusci, who also confronted defendant and told him that
he was lying. The officers told defendant that the machine was
proof that he lied. After approximately 15 to 20 minutes of
questioning, defendant confessed to the offense.
On September 8, 1992, the Cascade County Attorney's Office
filed an information charging defendant with one count of felony
sexual assault in violation of § 45-2-502, MCA. At his arraignment
on October 13, 1992, defendant pled not guilty. On January 15,
1993, defendant filed a motion to suppress his statement given
after the polygraph examination. On February 3, 1993, the District
Court held a hearing on the motion, ruling from the bench that the
motion was granted. On February 4, 1993, the court entered a
written order granting the motion. The State appeals from that
order.
3
The State argues that the police used appropriate tactics in
this case; that State v. Mayes (1992), 251 Mont. 358, 825 P.2d
1196, is not controlling in this instance: and that the District
Court's suppression of the evidence is in error. Defendant does
not contend that he was in custody at the time he admitted to
touching the victim. Instead, defendant argues that the tactic
used by the police when telling him that he was lying because of
the results of the polygraph in order to induce a confession is
improper.
To determine whether a confession is voluntary "is a factual
question which must take into account the totality of the
circumstances.l' Maves, 825 P.2d at 1208 (citing State v. Allies
(1979) I 186 Mont. 99, 606 P.2d 1043). "[W]hen a defendant raises
the question of voluntariness, the State must prove by a
preponderance of the evidence that the confession or admission
obtained was voluntarily obtained." Maves, 825 P.2d at 1208
(citing § 46-13-301(2), MCA).
Maves involved a defendant found guilty of incest who
confessed after a PolYgraph interrogation that he had
inappropriately touched his daughter one year earlier while living
in Washington. This Court suppressed the confession because at the
time of the confession, the defendant had been awake for more than
30 hours, had been questioned continually, had been separated from
his children, and had been lied to about the evidence against him.
Maves, 825 P.2d at 1208. The polygraph examination indicated the
4
defendant was not telling the truth, and the examiner used that
information to obtain a confession. Mayes, 825 P.2d at 1207.
Here, we do not have the same facts as were present in Mayes.
Before Officer Theisen initiated the polygraph exam, defendant
indicated that he had slept for six and one-half hours prior to the
exam. The police officers did not fabricate evidence, or tell
defendant that they had evidence that did not exist.
Even so, we strongly condemn the tactics used by the officers
in this case to coerce defendant's confession. Prior to this
charge, defendant had no criminal record and did not have
experience with police interrogation. The officers mislead
defendant into believing that the results of the test were
legitimate and admissible in order to induce a confession. The
State maintains ,that the officers' conduct in this case is an
acceptable tactic:, and that the use of a polygraph test is an
effective tool for investigative purposes.
Regardless of its acceptability among the police, it is not
acceptable to this Court for the police to use the results of a
polygraph examination to tell a defendant that he lied in order to
extract a confession. Nor can we say that the polygraph was used
for investigative purposes in this case. Officer Theisen testified
that the purpose of telling defendant that he lied was to elicit a
statement.
In State v. Staat (1991), 248 Mont. 291, 292, 811 P.2d 1261,
1262, we stated our position that we have "long abhorred the use of
lie detector evidence." (quoting State v. McPherson (1989), 236
5
Mont. 484, 491, 771 P.2d 120, 124). We restate for the bench and
bar of Montana that:
In light of the lack of trustworthiness of the
results of polygraph tests, we conclude that application
of the above statute [§ 37-62-302, MCA] should not be
limited to those court proceedings in which the rules of
evidence govern, but should extend to every proceeding in
Montana courts of law. . . .
. . . .
Polygraph evidence shall not be allowed in any
proceeding in a court of law in Montana. The &
acceptable lie detection methods in Montana court
proceedings reside with the court in bench trials, the
jury in jury trials, and the skill of counsel in
cross-examination in all trials. [Emphasis added].
Staat, 811 P.2d at 1262.
We also condemn the use of the results of polygraph
examinations to elicit or coerce a confession from defendants. We
hold that the District Court did not err in suppressing the
statement made by defendant following a polygraph examination where
the police officers used the results of the polygraph to tell the
defendant he had lied so as to elicit a statement or confession.
We affirm the decision of the District Court.
We concur:
6
Justices
7
I respectfully dissent.
Here, the defendant confessed to the crime of sexually
assaulting a minor after being informed by a police officer that
his polygraph examination indicated that he was lying about the
alleged assault.
Without specifically so stating, this Court apparently
concludes that the voluntariness of the defendant's confession is
at issue because of impermissible police tactics. That being the
case it is, then, incumbent that we at least apply to that issue
the test which the law requires.
A confession is to be suppressed only if it is determined that
it was not given voluntarily. Section 46-13-301(l), MCA. It is
well settled in this State that "[aIn analysis of the voluntariness
of a confession is a factual question which must take into account
the totalitv of the circumstances," State v. Mayes (1992), 251
Mont. 358, 376, 825 P.2d 1196, 1208; State v. Allies (1979), 186
Mont. 99, 111, 606 P.2d 1043, 1050; with each case being analyzed
on its facts and no single factbeing dispositive. State v. Lenon
(1977) I 174 Mont. 264, 271, 570 P.2d 901, 906. (Emphasis added.)
In the present case, applyivf the totality of the
circumstances test, it is clear that the defendant voluntarily
confessed.
While this Court focuses on the statement made by the
polygraph examiner after the test, to the effect that the results
of the polygraph test indicated untruthfulness on the part of the
defendant, that was but one fact to be considered in conjunction
8
with all other facts in determining whether the defendant's
confession was voluntarily given. People v. Button (Colo. 1992),
831 P.2d 486, 489. Even assuming that the examiner's comment was
improper, a conclusion with which I do not agree, the balance of
factors here indicate that the defendant's confession was
voluntarily given.
The defendant is a 59 year old man with a ninth grade
education employed as a custodian. There is no evidence that he
had difficulty communicating in or understanding English. Be
agreed to further discuss the case at the police station after
having been questioned earlier by Officer Bellusci and having been
given the Miranda warnings on that prior occasion. Be traveled to
the police station by himself. The defendant slept for more than
six hours before he arrived at the station for the polygraph
examination. Be was advised by Officer Bellusci before the exam
that the results of the exam were not admissible. The defendant
was advised of his Miranda rights before the exam. Tim Theisen,
the polygraph examiner, discussed the nature of the exam and the
polygraph with the defendant and gave him a consent form to be
signed before the exam commenced. The form stated that he was
taking the test voluntarily and that he had not been coerced or
forced to consent under duress or because of a promise of reward.
The consent form also stated that he had been advised of his
Miranda rights. The entire period of examination lasted about two
hours and 15 minutes and was given at a time agreeable to the
defendant.
9
Defendant's confession came 15 or 20 minutes into post-
examination questioning and after he was informed that the
polygraph exam indicated he had lied.
At no time did the police make any false statements to the
defendant in order to induce a confession. The police never made
any promises of benefits or rewards to him if he would confess to
the crime. They were not unduly confrontational. There is no
evidence that the defendant was not free to leave if he wished: he
was not under arrest, and, thus, this was not a custodial
interrogation. There are no specific allegations of coercive
conduct. There are no allegations that he was deprived of sleep,
water, food, contact with the outside world or that he was detained
too long. See State v. Blakney (1982), 197 Mont. 131, 141, 641
P.2d 1045, 1051. In short, as the Court acknowledges in its
opinion, there were none of the impermissible police tactics which
we condemned in Maves present here.
Simply put, when the confession is reviewed under the totality
of the circumstances, one is led inescapably to the conclusion that
the confession was voluntarily given. See State v. Waugh (Kan.
1986), 712 P.2d 1243: Hutton, 831 P.2d at 489; People v. Knighton
(1983) r 458 N.Y.S.2d 320; People v. Ray (Mich. 1988), 430 N.W.2d
626.
This Court, nevertheless, and without analyzing the confession
under the appropriate totality of circumstances test, condemns the
tactics used by the officers in obtaining the defendant's
confession. The opinion states that *l[t]he officers mislead
10
defendant into believing that the results of the test were
legitimate and admissible in order to induce a confession." That
conclusion, of course, flies in the face of the fact that Officer
Bellusci advised the defendant prior to the exam that the results
were not admissible -- a point acknowledged by the Court.
Furthermore, unless this case now stands for the opposite
rule, there is no requirement that the police administer new
Miranda warnings after the exam and before post-examination
questioning. Wyrick v. Fields (1982), 459 U.S. 42, 47, 103 S.Ct.
394, 74 L.Ed.2d 214.
In summary, there is simply no factual basis in the record for
the conclusion, nor is there any discussion in the Court's opinion
of how, exactly, the police here "mislead" the defendant or
unlawfully coerced his confession. They did nothing of the sort,
and a proper totality of circumstances analysis would clearly
reveal that.
The Court goes on to state that l1 . ..it is not acceptable to
this Court for the police to use the results of a polygraph
examination to tell the defendant that he lied in order to extract
a confession." That begs the question of, for what, then, can the
police use the results of a polygraph examination? If the police
are not free to tell a defendant that they believe he is lying,
then there is really no point in giving him the examination in the
first place.
The polygraph, while its use has been severely restricted, is
still considered an effective tool for investigative purposes, even
11
if the test results themselves may lack trustworthiness.
The fact that a test has not been deemed sufficiently
reliable to authorize admission of the results in
evidence does not support a logical inference that the
defendant's statements made during or following the test
are not reliable. The premise cannot support the
defendant's conclusion because the statements made by an
examinee during a Polygraph examination can be
disassociated from the underlying test.
w, 430 N.W.2d at 628. Moreover:
[t]he general rule in other jurisdictions is that
statements are not inadmissible merely because they were
made during the course of a polygraph examination. In
general, a defendant will be unsuccessful in challenging
the admissibility of an alleged polygraph-induced
confession unless specific coercive conduct or a denial
of constitutional rights can be shown, as opposed to a
mere allegationthatthe polygraph examination improperly
influenced the defendant's confession of the crime.
&y, 430 W.W.2d at 628. (Citation omitted.)
At least up until now, we have held to the rule that voluntary
statements made by a defendant following a polygraph examination
may be admitted into evidence even though the results of the exam
itself would be inadmissible. State v. Smith (1986), 220 Mont.
364, 380, 715 P.:2d 1301, 1310. While the Court reiterates its
"abhor[rence] [for] the use of lie detector evidence," citing State
v. Staat (1991), 248 Mont. 291, 292, 811 P.2d 1261, 1261, the fact
is that no "lie detector evidence" was used here. We are dealing,
instead, with a confession given after a polygraph exam where the
totality of circumstances clearly supports the conclusion that the
incriminating statement was voluntary and not the result of police
misconduct.
If we are now advancing our abhorrence for "lie detector
evidence" to the point where incriminating, voluntary statements
12
given after such an exam are per se inadmissible, as they now
apparently are, then we should simply so hold and save law
enforcement authorities in this State the future frustration and
wasted effort of attempting to use, within recognized parameters,
the exam as a legitimate investigative tool to obtain truthful
statements from dlefendants.
In failing tlo properly examine the defendant's incriminating
statement in the context of the totality of the circumstances in
which it was given, the District Court, and now this Court, have
ignored and have implicitly overruled existing precedent; have
fashioned an unjustified restriction on legitimate police
interrogation; and have put the final nail in the coffin of the use
of the polygraph examination as an investigative tool in Montana.
In that I cannot agree. I would reverse, and, accordingly, I
respectfully dissent from this Court's opinion.
Justice Karla M. Gray joins in
13