State v. Pierce

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 6, 2004 Session

Heard at Maryville1

STATE OF TENNESSEE v. GREGORY PIERCE

Appeal by permission from the Court of Criminal Appeals

Criminal Court for Sullivan County

No. S42,869 R. Jerry Beck, Judge

No. E2001-01734-SC-R11-CD - Filed July 16, 2004

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We granted permission to appeal in this case to determine whether the trial court erred in considering

the results of the defendant sex offender’s polygraph examination when denying the defendant’s

request for probation. The polygraph examination was administered as part of the risk assessment

report that is mandated by statute for all sex offenders seeking probation. Because polygraph

examinations are inherently unreliable, we hold that trial courts may not consider polygraph

examination results or any portion of a risk assessment report that relies upon polygraph examination

results when imposing sentences. However, even excluding the polygraph examination results, the

record in this case supports the denial of probation. Accordingly, the judgment of the Court of

Criminal Appeals is affirmed in part and modified in part.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals

Affirmed in Part and Modified in Part

FRANK F. DROWOTA , III, C. J., delivered the opinion of the court, in which E. RILEY ANDERSON ,

ADOLPHO A. BIRCH , JR., JANICE M. HOLDER , and WILLIAM M. BARKER, JJ., joined.

Steve McEwen, Mountain City, Tennessee, and Terry L. Jordan, Blountville, Tennessee, for the

appellant, Gregory Pierce.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kathy D.

Aslinger, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General, and James

Goodwin, Assistant District Attorney General, for the appellee, State of Tennessee.

1

This case was heard as part of the May 6, 2004, S.C.A.L.E.S. (Supreme Court Advancing Legal Education

for Students) project in Maryville, Blount County, Tennessee.

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OPINION

I. Factual and Procedural Background

Gregory Pierce was indicted for rape of a child after impregnating a twelve-year-old girl. He

pleaded guilty to attempted rape of a child and received an agreed sentence of eight years, with the

manner of service of the sentence to be decided by the trial court. Prior to the sentencing hearing,

Counseling and Clinical Services (“CCS”) conducted an assessment of Pierce, to evaluate his risk

of re-offending and to recommend a course of treatment. Dr. Michael Adler, the clinical director of

CCS, submitted a report of the risk assessment and testified at the sentencing hearing.

The risk assessment report stated that “[t]he willingness or ability to honestly discuss their

sexual offending behavior is the single most important factor associated with sexual treatment.” The

report contained Pierce’s self report of this offense and his history of offending, as well as other

personal information:

Gregory was able to acknowledge the probability of his sexually

offensive behavior related to the instant offense. However, he

reported being too intoxicated to remember anything. He denied any

other sexual behavior. Since he was determined indigent by the

Court, he did not complete a Polygraph Examination. So the veracity

of his denial of any other victims was not determined. His level of

honesty can be considered fair at best.

Gregory significantly minimized his responsibility for the

sexual offense. He portrayed the victim of conviction as pursuing

him when he was trying to stay away from her . . . . Gregory

demonstrated no understanding or insight concerning his capacity to

sexualize a child . . . . Gregory demonstrated minimal empathy for

the victim. He was unsure of any potential harm his sexual contact

has had on her since his perception is that she was the instigator of

the sexual contact.

Gregory has no prior significant criminal history and denied

having a substance abuse problem and does not appear to be suffering

from other serious pathology. However, he has a poor work history,

limited interpersonal social skills, appears socially isolated, and

seems emotionally constricted.

The risk assessment report also included the results of Pierce’s penile plethysmograph

(“PPG”):2

2

Penile Plethysmograph is a test designed to measure sexual responsiveness to a variety of stimuli across

gender, age, and sexual activity. See In re Care and Treatment of Tucker, 578 S.E.2d 719, 721 (S.C. 2003). Pierce

has not challenged the use of this particular test, and we express no opinion on the propriety of its use in this case.

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Gregory exhibited significant arousal responses to all females, infant

to 17 years old and male infants, males 2-5 years old and males 12-17

years old. He demonstrated no clinical significant arousal responses

to his reported sexual preference of adult women. The presence of

sexual arousal responses to almost all ages of children is of

significant concern and increases his risk to engage in sexually

offending behavior.

The report contained a determination that on the Comprehensive Risk to Re-Offend Scale,

Pierce presents a moderate risk to re-offend and that without specific treatment and supervision, he

will most likely continue to “sexually act out.” The report opined that Pierce is a fair candidate for

sex offender treatment whose “level of risk could most likely be managed by probation provided he

follows the guidelines contained in the Sex Offender Special Conditions.” The report concluded

with a recommendation that Pierce complete a full disclosure polygraph examination to verify his

claim that he had no other sexual offense history with minors. The polygraph test was recommended

because “once [Pierce’s] full sexual offense history is verified, his risk to the community may

change.”

At Pierce’s February 15, 2001 sentencing hearing, Dr. Adler testified on the contents of the

risk assessment report. When asked whether the results of the PPG test were consistent with Pierce’s

self report of no prior offenses, Dr. Adler responded, “No, Sir. Usually individuals who have

significant arousal to minors and no arousal to adults would be - our history has been it’s more

consistent with repetitive types of offenses.” Dr. Adler also testified that the Department of

Correction protocol recommends the performance of a polygraph examination on sexual offenders

and that his confidence as to Pierce’s risk of re-offending was qualified because Pierce had not

completed a polygraph examination. However, he stated that he would “stand on” the conclusion

that Pierce presented a moderate risk to re-offend even without a polygraph examination. At the end

of Dr. Adler’s testimony, the trial judge commented that “the report does not look bad. Most of the

report favors probation.” He ordered Pierce to schedule and undergo a polygraph examination and

continued the sentencing hearing until polygraph results were available.

When the sentencing hearing resumed on June 21, 2001, a Summary of Polygraph

Examination (“Summary”) was admitted into evidence. According to this Summary, Pierce

demonstrated deception when he answered “no” to the following two specific questions: 1) Are you

deliberately not telling me about any other minors that you have had sexual contact with since you

turned nineteen? and 2) Since you turned nineteen, have you had sexual contact with a minor that

you are intentionally not telling me about? The Summary further stated that:

This would suggest that he has not fully disclosed all minors with

whom he has had sexual contact. It is our recommendation, should

the Court decide to let Mr. Pierce remain in the community and attend

out-patient sexual offender treatment, he be required to disclose all

minors with whom he has had sexual contact within six months of

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entering treatment. If he has not fully disclosed within this amount

of time, the Court may want to review whether he needs more

intensive treatment in a secure setting.

When commenting on the Summary, the trial court noted, “I can’t see that Dr. Adler’s

changed his opinion.” However, the trial court observed, “[n]ow, he’s taken the polygraph and they

found out he’s untruthful. So . . . the Court can only conclude I’ve got a . . . person that sexually is

going to act out with children.” The trial court wrestled with this issue of first impression – whether

polygraph test results conducted as part of a sex offender risk assessment may be considered in

sentencing. The trial court acknowledged that courts have generally excluded polygraph test results

as unreliable but pointed out that a publication that the Department of Correction provides to each

center administering risk assessments, Ethical Standards and Principles for the Management of

Sexual Abusers,3 permits the use of polygraph tests to evaluate and treat sexual offenders. The trial

court ultimately decided to consider the polygraph test results in determining the service of the

sentence. After denying probation, and all other forms of alternative sentencing, the trial judge

stated, “if I deny the defendant’s probation, it’s going to be on the results of those polygraphs.”

Pierce appealed the denial of probation, arguing that the trial court erred by considering the

polygraph test results. The Court of Criminal Appeals concluded that Pierce had failed to object to

consideration of those results at trial and therefore had waived his right to appeal that issue.4

However, the Court of Criminal Appeals discussed the merits of Pierce’s argument and concluded

that the record supported the trial court’s denial of probation. As did the trial court, the intermediate

court observed that the publication provided to all treatment centers by the Department of

Correction, Ethical Standards and Principles for the Management of Sexual Abusers, recommends

and encourages the use of polygraph tests in performing risk assessments “to elicit information not

available through traditional interviewing techniques.” The Court of Criminal Appeals noted that

the trial court had characterized this publication as a set of administrative rules adopted by the Sex

Offender Treatment Board of the Department of Correction pursuant to statutory authorization.5

The Court of Criminal Appeals concluded that it is not the role of an appellate court to second-guess

the statutory authorization that represents the policy judgment of the legislature. Therefore, the

Court of Criminal Appeals did not evaluate the propriety of the trial court’s use of polygraph

examination results in sentencing, but instead held that even without the polygraph test results, the

record contained sufficient evidence to support the trial court’s decision to deny probation. We

granted Pierce’s application for permission to appeal.

3

Published by the Association for the Treatment of Sexual Abusers in Beaverton, Oregon.

4

The Court of Criminal Appeals found and the State maintains that Pierce waived his right to appeal this

issue because the transcript of the hearings contains no record of an objection on this issue. W e disagree. The trial

court’s order denying alternative sentencing specifically states that counsel for the defendant objected to the court’s

consideration of the polygraph examination results. The issue is not waived.

5

The creation of the Board is authorized in Tennessee Code Annotated section 39-13-704 (2003) .

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II. Admissibility of Polygraph Examination Results

As stated above, the Court of Criminal Appeals opined that it is not the role of an appellate

court to review the use of polygraph examination results in sex offender risk assessments, because

it believed that the use of such results had been condoned in an administrative rule promulgated

according to the policy judgment of the legislature. Relying upon prior decisions of this Court,

Pierce contends polygraph exam results are inherently unreliable and that the trial court erred by

considering the results of a polygraph examination in determining his sentence. The State agrees

with Pierce that the polygraph examination results were inadmissible as evidence. However, the

State argues that the trial court did not err by considering the initial risk assessment report because

no polygraph examination had been given when the risk assessment was conducted, so the initial

report was not based upon or influenced by polygraph results.

We begin our analysis with a review of the statutes that govern the pre-sentence risk

assessment evaluation of sex offenders. A convicted sex offender who is seeking probation must

submit to an evaluation for the purposes of identifying and assessing the offender’s risk of re-

offending and potential for treatment and to establish a treatment plan and procedures for monitoring

behavior. Tenn. Code Ann. § 39-13-705 (2003). The evaluation report “shall be included as part

of the pre-sentence report and shall be considered by the court in determining the sentencing issues

stated in this section.” Tenn. Code Ann. § 39-13-705(b) (2003). The evaluation must be performed

according to the standardized procedures developed and prescribed by the Sex Offender Treatment

Board (“Board”). See Tenn. Code Ann. § 39-13-704(d)(1) (2003).6 While the Legislature has given

the Board authority to develop and prescribe standardized procedures for conducting the evaluations,

it is important to note that no statutes mandate or encourage the Board to prescribe the use of

polygraph examinations as part of a standardized procedure for conducting the evaluations.

Polygraph examinations are mentioned in a separate statutory subsection, Tennessee Code Annotated

section 39-13-704(d)(2), but the statute relates only to the use of polygraph examinations in the

treatment and monitoring of sex offenders who have been “placed on probation, incarcerated with

the department of correction, placed on parole, or placed in community corrections.” Tenn. Code

Ann. § 39-13-704(d)(2) (2003).7 Therefore, this statutory provision authorizes polygraph

examinations for treatment and monitoring that occurs after a sentencing decision has been made.

Furthermore, while the statutes mandate that the evaluation report prepared in accordance with the

standardized procedures adopted by the Board be included in the pre-sentence report submitted to

the trial court and considered by the trial court in determining the sentencing issues,8 the statutes do

6

The Board is part of the Department of Correction and consists of thirteen members. These members are

appointed by the Chief Justice of the Supreme Court (one member), the Commissioner of the Department of

Correction (nine members), the Tennessee Bureau of Investigation (one member), the Commissioner of the

Department of Children’s Services (one member), and the presiding officer of the Board (one member, who is a

representative of the board of paroles. The Board’s presiding officer is appointed by and serves at the pleasure of

the Commissioner of the Department of Correction). Tenn. Code. Ann. § 39-13-704(a) (2003).

7

The propriety of using polygraph tests in treatment and monitoring programs for sex offenders is not at

issue in this case.

8

Tenn. Code Ann. § 39-13-705(b) (2003).

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not mandate that trial courts consider polygraph examinations in determining sentencing issues.

Polygraph examinations are not mandated or mentioned in the statutes relating to this required pre-

sentence evaluation. Moreover, even though the standardized procedures developed and prescribed

by the Board include the use of polygraph examinations,9 trial courts are not bound by the Board’s

standardized procedures when determining what evidence is admissible at a sentencing hearing.

Indeed, the admissibility of evidence at a sentencing hearing is governed by Tennessee Code

Annotated section 40-35-209(b) (2003), which provides:

The rules of evidence shall apply, except that reliable hearsay including, but not

limited to, certified copies of convictions or documents, may be admitted if the

opposing party is accorded a fair opportunity to rebut any hearsay evidence so

admitted; provided, that this subsection shall not be construed to authorize the

introduction of any evidence secured in violation of the constitution of the United

States or of Tennessee.10

Tennessee Rule of Evidence 402 states that “[e]vidence which is not relevant is not admissible.” It

is well-established in the jurisprudence of this State that polygraph evidence is inherently unreliable,

and therefore irrelevant and inadmissible. See State v. Torres, 82 S.W.3d 236, 252 n.20 (Tenn.

2002); State v. Irick, 762 S.W.2d 121, 127 (Tenn. 1988); Grant v. State, 374 S.W.2d 391, 392

(Tenn. 1964); Marable v. State, 313 S.W.2d 451, 456 (Tenn. 1958); State v. Campbell, 904 S.W.2d

608, 614-15 (Tenn. Crim. App. 1995) (citing additional cases). Recently, in State v. Hartman, this

Court applied this longstanding rule and held that the trial court had not erred by refusing to allow

the defendant to introduce the results of his polygraph examination as mitigation evidence at his

capital sentencing hearing. 42 S.W.3d 44, 60 (Tenn. 2001). In so holding, we noted that the

polygraph examination’s “lack of any indicia of reliability means it is not probative.” Id. We upheld

the trial court’s refusal to admit the polygraph test results even though the rules of evidence are not

strictly applied in capital sentencing hearings. Id. This longstanding rule barring the admission of

polygraph evidence applies with greater clarity in this non-capital sentencing hearing where the rules

of evidence are expressly applicable. Indeed, justice would not be served by a rule that allowed

prosecutors to introduce polygraph test results against a defendant in a non-capital sentencing

hearing, while at the same time precluding a defendant from introducing such evidence in his own

behalf during a capital sentencing proceeding. Therefore, we reaffirm our prior decisions and hold

that polygraph examinations are unreliable and inadmissible. Consequently, polygraph examination

results, testimony on such results, or testimony regarding a defendant’s willingness or refusal to

submit to a polygraph examination is not admissible during capital or non-capital sentencing

9

At page 6, the Psychosexual Evaluation Manual, Pre-Sentence Psychosexual Evaluation: Adult Sexual

Offenders, used by the Board in annual training, August 26, 2003, encourages assessors to “[u]se polygraph and

physiological measures within your report, as available.”

10

This exception requires that the hearsay evidence, which is not admissible at other proceedings unless it

falls within an exception, be excluded at sentencing if it is not reliable. This insistence on reliability of the evidence

is consistent with our insistence here that inherently unreliable evidence, such as polygraph test results, be excluded

even at sentencing.

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hearings. Other states have reached the same conclusion on the use of polygraph examination results

in sentencing. See People v. Liddell, 234 N.W.2d 669, 672 (Mich. App. 1975); State v. Anderson,

977 P.2d 315, 317 (Mont. 1999); Commonwealth v. Puchalski, 456 A.2d 569, 573 (Pa. Super.

1983). Therefore, when imposing sentences, trial courts should not consider polygraph examination

results or any portion of a risk assessment report that relies upon polygraph examination results.

Applying this rule to the facts in this case, we conclude that the trial court erred by

considering the results of Pierce’s polygraph examination when determining his sentence. The trial

court’s statements made it clear that its decision to deny Pierce probation was greatly influenced by

the polygraph examination results it accepted into evidence. This conclusion that the trial court erred

does not end the inquiry, however, because the Court of Criminal Appeals concluded that, excluding

the polygraph results, sufficient evidence in the record supported the trial court’s denial of probation.

For the reasons that follow, we agree with the Court of Criminal Appeals’s conclusion.

III. Trial Court’s Sentencing Determination

The appealing party has the burden of showing that a sentence is improper. Tenn. Code Ann.

§ 40-35-401(d) (Sentencing Commission Comments) (2003). Our review of the trial court’s

sentence is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d) (2003).

However, the presumption of correctness which accompanies the trial court’s action is conditioned

upon the affirmative showing in the record that the trial court considered the sentencing principles

and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the

trial court fails to comply with statutory sentencing directives, there is no presumption of correctness,

and our review is simply de novo. State v. Poole, 945 S.W.2d 93, 93 (Tenn. 1997). In this instance,

we review the trial court’s sentencing decision de novo. Although the trial court erred in considering

the results of the polygraph test, a de novo review of the record in this case reveals that Pierce is not

a suitable candidate for probation.

Because attempted rape of a child is a Class B felony, there is no presumption in this case

that the defendant is a favorable candidate for alternative sentencing. Tenn. Code Ann. §§ 39-12-

207(a), 39-13-522(b), 40-35-102(6) (2003). The factors to be considered in sentencing are:

1) the evidence, if any, received at the trial and the sentencing hearing;

2) the pre-sentence report;

3) the principles of sentencing and arguments as to sentencing alternatives;

4) the nature and characteristics of the criminal conduct involved;

5) evidence and information offered by the parties on the enhancement and mitigating factors

in §§ 40-35-113 and 40-35-114;

6) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing.

Tenn. Code Ann. § 40-35-210(b) (2003).

In addition, a court should consider the potential or lack of potential for the rehabilitation or

treatment of the defendant. Tenn. Code Ann. § 40-35-103(5) (2003).

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We agree with the State that the initial risk assessment report submitted by Dr. Adler was

properly considered by the trial court. The trial judge was mistaken when he stated in his order

denying alternative sentencing that “the opinion of moderate or fair is intertwined with the

polygraph.” The report noted, as did Dr. Adler in his testimony, that Pierce had not taken a

polygraph examination at the time Dr. Adler assessed Pierce as a fair to moderate risk to re-offend.

Dr. Adler also qualified his conclusion that Pierce presented a moderate risk to re-offend by noting

that his conclusion might be changed by the results of a polygraph examination. However, the risk

assessment report was prepared without any polygraph examination having been administered, and

the conclusions in it were based entirely on other information gathered in the evaluation. Nothing

in the report or in Dr. Adler’s testimony suggested that Dr. Adler’s initial conclusions were

influenced by the fact that Pierce had not taken a polygraph examination. In fact, Dr. Adler stated

that even without a polygraph examination he would “stand on” his determination that Pierce posed

a moderate risk to re-offend. The information contained in the risk assessment, the conclusions

drawn in it, and Dr. Adler’s testimony at the sentencing hearing were not tainted by the later

polygraph examination. Thus, the initial risk assessment and Dr. Adler’s testimony are appropriate

sentencing considerations. This report and testimony clearly support a denial of probation. In

particular, the report concluded that Pierce was a moderate risk for re-offending, that he showed

minimal empathy for his victim, that he had a poor work history, and that he was socially isolated

and emotionally constricted.

Other factors also supporting the trial court’s denial of probation include: (1) the defendant’s

instances of untruthfulness; (2) the defendant’s sexual attraction to minors, as documented in his risk

assessment; and (3) the facts of his case, which indicate that the defendant committed the greater

offense of rape of a child, an offense for which he would not have been eligible to receive probation.

The record contains evidence demonstrating the defendant’s untruthfulness. The defendant

denied past drug use, while his pre-sentence report indicated that he had been observed using

marijuana. The defendant claimed that he had been so intoxicated on the night that he impregnated

the victim that he could not remember the encounter. However, during his probation hearing, the

defendant claimed that the victim had consented to the act. On another occasion, the defendant

stated that after committing this sexual offense against the victim, he abstained from further sexual

contact with her, even though he continued to “date” her for several weeks after their initial

encounter. However, this claim is dubious given that the pre-sentence report reflects that the victim

spent the night with the defendant on several occasions after the incident resulting in his conviction.

Also supporting a denial of probation is the defendant’s sexual preference for minors, which

was documented by the risk assessment report and in particular the results of the PPG, which

indicated that the defendant “exhibited significant arousal responses to all females from infant to 17

years old, male infants, males 2-5 years old, and males 12-17 years old,” but that he exhibited no

“clinical significant arousal” to adult women, the age group he purports to prefer. Dr. Adler testified

that the results of his PPG were consistent with those of repetitive offenders.

Finally, the facts and circumstances surrounding the defendant’s crime also support the denial

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of probation. See Tenn. Code Ann. § 40-35-210(b)(4) (2003). When determining whether probation

is appropriate it is proper “to look behind the plea bargain and consider the true nature of the

offenses committed.” State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983). Although the

defendant pleaded guilty to attempted rape of a child, it is clear that the defendant actually committed

the offense of rape of a child as he admitted to impregnating his twelve-year-old victim. Had the

defendant been convicted of rape of a child, he would have been ineligible for probation and required

to serve one hundred percent of a fifteen- to twenty-five-year sentence. See Tenn. Code Ann. §§ 39-

13-522(b), 40-35-112(a)(1), 39-13-532(b) (2003). Instead, the defendant pleaded guilty to the lesser

offense of attempted rape of a child and received an eight-year sentence, the minimum sentence for

which he was eligible. See Tenn. Code Ann. § 40-35-112(a)(2) (2003). As a Range I standard

offender, he will become eligible for parole after serving only thirty percent of his eight-year

sentence. Accordingly, the circumstances of the offense support the denial of probation.

IV. Conclusion

For the reasons stated herein, the trial court erred by considering the polygraph

examination results when denying the defendant’s request for probation. Nonetheless, the record

supports the denial of probation and the sentence imposed. Accordingly, the judgments of the

trial court and Court of Criminal Appeals are affirmed on the separate grounds stated. It

appearing that the defendant is indigent, costs of this appeal are taxed to the State of Tennessee.

_________________________________________

FRANK F. DROWOTA, III, CHIEF JUSTICE

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