State v. Craig

                              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,

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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.



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        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



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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

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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

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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.


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       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

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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


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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

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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




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