concurring in part and dissenting in part.
I agree with the Majority that KRS 508.-100(l)(c) is not unconstitutionally vague. I respectfully dissent, however, from the holding that the appellant’s confession was inadmissible. In my opinion, the Court of Appeals correctly found that the appellant, by agreeing to take a polygraph test, in effect “initiated interrogation”; i.e., invited the examiner to ask him questions about the abuse of the Hall baby. In so ruling, the Court of Appeals’ opinion cited as precedent Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). In that case, the accused, Fields, retained counsel after police charged him with raping an eighty-one-year-old woman. At his request, Fields was given a polygraph examination after he had signed a consent form waiving his constitutional rights to remain silent and to the advice of counsel. After administering the test, the examiner advised Fields that he had failed the test, and asked him if he could explain his answers. Fields then confessed to the crime.
The U.S. Supreme Court found that Fields had initiated interrogation when he requested a polygraph examination:
.'.. Fields waived not only his right to be free of contact with the authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. Fields validly waived his right to have counsel present at “post-test” questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a “knowing and intelligent relinquishment or abandonment” of his rights. (Citing Edwards v. *223Arizona, 451 U.S. 477, 482; 101 S.Ct. 1880, 1883; and 68 L.Ed.2d 378 (1981).)
Wyrick, 459 U.S. at 47, 103 S.Ct. at 396, 74 L.Ed.2d at 218.
In the present case, Canler also agreed to take the polygraph test and waived his right to have counsel present during the exam. There is no evidence that Canler was coerced into signing the written waiver nor into answering questions after the polygraph machine was disconnected. The Wyrick court specifically held that no further Miranda warnings were required:
The Court of Appeals relied on two facts indicating the need for a new set of warnings: the polygraph examination had been discontinued, and Fields was asked if he could explain the test’s unfavorable results. To require new warnings because of these two facts is unreasonable. Disconnecting the polygraph equipment effectuated no significant change in the character of the interrogation. The CID agent could have informed Fields during the examination that his answers indicated deceit; asking Fields, after the equipment was disconnected, why the answers were bothering him was not any more coercive.
Wyrick, 459 U.S. at 47, 103 S.Ct. at 396, 74 L.Ed.2d at 218.
The majority states that Canler’s submission to the polygraph examination was “... under an agreement specifically requesting that there not be any questions other than the polygraph test itself.” However, Detective Jenkins, with whom Canler’s attorney made the agreement concerning the polygraph exam, maintains that he only agreed that he would not interview Canler at Madi-sonville where the polygraph exam was to be administered at the KSP crime lab, and that he accordingly took no part in Canler’s interrogation.
The majority also attempts to distinguish the Wyrick case, supra, and the case of Silverburg v. Commonwealth, Ky., 587 S.W.2d 241 (1979), from the present ease by stating that “... this appellant [Canler] did not assume that questions would be asked after the polygraph examination-” This contention was also answered by the Wyrick court as follows:
[I]t would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result. Moreover, Fields had been informed that he could stop the questioning at any time, and could request at any time that his lawyer join him. Merely disconnecting the polygraph equipment could not remove this knowledge from Fields’ mind.
Wyrick, 459 U.S. at 47, 103 S.Ct. at 396, 74 L.Ed.2d at 219.
In view of all of the above, I would affirm the holding of the Court of Appeals that Canler’s confession to abusing the Halls’ baby, would be admissible at his trial.
WINTERSHEIMER, J., joins this concurring and dissenting opinion.