No
No. 98-318
293 Mont. 472
977 P. 2d 315
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 58
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM JOSEPH ANDERSON,
Defendant and Appellant.
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APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
Honorable Roy C. Rodeghiero, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Chris J. Nelson, Attorney at Law, Billings, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana
Randal I. Spaulding, County Attorney, Roundup, Montana
Submitted on Briefs: March 11, 1999
Decided: March 23, 1999
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No
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1. In proceedings before the Fourteenth Judicial District Court, Musselshell
County, William Joseph Anderson (hereinafter Anderson) was charged with and
pled guilty to acts of incest with his minor daughter. Anderson appeals his sentence
on the grounds that the sentencing court improperly relied upon a psychosexual
evaluation which included the results of a polygraph test. We reverse and remand.
ISSUES
¶2. 1. Did the District Court err in denying Anderson's motion to have a new
psychosexual evaluation performed without the use of a polygraph test?
¶3. 2. Did the State breach its plea agreement with Anderson?
BACKGROUND
¶4. In May 1997, Anderson was charged with and pled guilty to a charge of incest in
violation of § 45-5-507, MCA. As part of his plea agreement with prosecutors,
Anderson was required to and did voluntarily submit to a psychosexual evaluation
by Dr. Robert C. Bakko (Dr. Bakko).
¶5. As part of his evaluation, Dr. Bakko conducted a polygraph test on Anderson. Dr.
Bakko testified before the District Court that he had considered the results of this
test in preparing his presentence sexual offender evaluation. The adult probation and
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parole officer who prepared Anderson's presentence investigation testified that she
had consulted Anderson's psychosexual evaluation in making her sentencing
recommendations. Dr. Bakko's evaluation was also reviewed by the District Court
prior to Anderson's sentencing hearing.
¶6. Anderson moved for a continuance of the sentencing hearing so that a new
psychosexual evaluation could be performed without the use of a polygraph test. The
District Court denied this motion.
¶7. According to the terms of Anderson's plea agreement, the State was not bound by
the plea agreement if the results of the evaluation indicated Anderson was a Level 3
sexual offender as defined by § 46-23-509, MCA. A Level 3 offender is one for whom
the risk of a repeat sexual offense is high, there is a threat to public safety, and the
evaluator believes that the offender is a sexually violent predator. Dr. Bakko testified
that although Anderson was sexually violent, he did not meet the profile of a sexual
predator. Dr. Bakko nevertheless categorized Anderson as a Level 3 offender in his
presentence evaluation.
¶8. Based on Dr. Bakko's assessment of Anderson as a Level 3 offender, the State
initially declined to abide by the terms of the plea agreement. However, after further
inquiry by the court, the State recommended that Anderson be sentenced according
to the plea agreement. The District Court nevertheless disregarded the State's
sentencing recommendations in the plea agreement and sentenced Anderson to ten
years at the Montana State Prison. Anderson appeals.
DISCUSSION
¶9. Did the District Court err in denying Anderson's motion to have a new
psychosexual evaluation performed without the use of a polygraph test?
¶10. Our standard of review of discretionary trial administration rulings is whether
the trial court abused its discretion. Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 475, 803 P.2d 601, 603-604. The standard of review of a district court's
conclusions of law is whether the court's interpretation of the law is correct. Carbon
County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶11. Anderson argues that the District Court abused its discretion in not granting his
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motion to continue the sentencing hearing so that a new evaluation could be
performed without the use of a polygraph test. The State argues that it was not error
for the District Court to deny Anderson's motion because the results of Anderson's
polygraph test were not introduced as evidence at the hearing, but rather were used
only as an interpretative tool during the course of Dr. Bakko's evaluation. In the
alternative, the State argues that since Anderson was the party who introduced the
psychosexual evaluation into evidence, Anderson cannot now complain of its
consideration by the District Court for sentencing purposes.
¶12. We hold that the District Court abused its discretion in denying Anderson's
motion for a continuance so that a new evaluation could be performed without the
use of a polygraph. Polygraph evidence may not be used in any proceeding in a court
of law in Montana. State v. Staat (1991), 248 Mont. 291, 293, 811 P.2d 1261, 1262.
This prohibition encompasses the use of polygraph results during sentencing. State v.
Hensley (1991), 250 Mont. 478, 483, 821 P.2d 1029, 1032. This prohibition also
encompasses the introduction of polygraph results into evidence via a court-ordered
sex offender evaluation. In re Marriage of Njos (1995), 270 Mont. 54, 61, 889 P.2d
1192, 1196. In addition to precluding the direct introduction of the results of a
polygraph test, it is the law in Montana that any evidence which would otherwise be
admissible may be rendered inadmissible where a polygraph is used in the
production of or for the purpose of influencing the outcome of such evidence. See
State v. Craig (1993), 262 Mont. 240, 242-43, 864 P.2d 1240, 1242-43.
¶13. We reject the State's argument that Anderson is precluded from appealing the
introduction of the polygraph results via the psychosexual evaluation performed by
Dr. Bakko on the grounds that it was Anderson who placed the evaluation into
evidence at the sentencing hearing. We do so because the record reveals that the
District Court had reviewed the evaluation prior to the hearing, and the presentence
investigation also had included reference to the evaluation. The evaluation, therefore,
was already in evidence insofar as its contents had been consulted for purposes of
sentencing.
¶14. When we held in State v. Staat that polygraph results may not be used in any
proceeding in a court of law in Montana, it was made clear that this plain,
unambiguous statement needed no further explanation. If a finder of fact, judge,
hearing officer, evaluator or any other person in a similar position directly or
indirectly allows polygraph results to be made a part of the review leading to a
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finding or recommendation in a court proceeding, no matter how careful such person
may be in not disclosing such fact, the entire review leading to the finding, decision
or recommendation is tainted and may not be introduced into evidence.
¶15. Because we find the District Court's error with regard to the denial of
Anderson's motion for a new psychosexual evaluation to be a dispositive issue on
appeal, we decline to address Anderson's second issue with regard to the breach of
the plea agreement.
¶16. We reverse and remand this case to the District Court with the instruction that
a new psychosexual evaluation of Anderson be performed without the use of a
polygraph test and that a new presentence investigation be prepared in light of the
results of the new psychosexual evaluation.
/S/ J. A. TURNAGE
We concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ JAMES C. NELSON
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