State v. Reese

[Cite as State v. Reese, 2016-Ohio-557.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

)

PLAINTIFF-APPELLEE, )

) CASE NO. 14 MA 116

V. )

) OPINION

LAMAR REESE, )

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common

Pleas of Mahoning County, Ohio

Case No. 2013CR828A

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Paul Gains

Prosecutor

Ralph M. Rivera

Assistant Prosecutor

21 W. Boardman St., 6th Floor

Youngstown, Ohio 44503

For Defendant-Appellant Attorney Rhys Cartwright-Jones

42 North Phelps St.

Youngstown, Ohio 44503-1130

JUDGES:

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: February 10, 2016

[Cite as State v. Reese, 2016-Ohio-557.]

DONOFRIO, P.J.

{¶1} Defendant-appellant, Lamar Reese, appeals from a Mahoning County

Common Pleas Court judgment convicting him of aggravated murder and aggravated

robbery following a jury trial.

{¶2} On September 16, 2011, Aaron Triplett drove his brother Frankie

Hudson, Jr., appellant, Jerome Miller, and one other unidentified person to Joshua

Davis’s house to purchase marijuana. At some point, the plan changed from buying

the marijuana from Davis to stealing the marijuana from Davis. According to Triplett,

he, appellant, and Hudson all had guns with them but they did not plan to assault

Davis. When they arrived at Davis’s house, Davis met Triplett and Hudson. The

three went through Davis’s house and into the garage to weigh the marijuana.

Appellant, Miller, and the unidentified person waited in the car. According to Triplett,

when he, Hudson, and Davis walked back toward the porch after retrieving the

marijuana, they saw appellant standing in the driveway with his assault rifle. Davis

began yelling. According to Triplett, Hudson then pulled out his gun and someone

started shooting. Triplett saw both appellant and Hudson pointing their guns at

Davis. Triplett fled from the scene. Davis died from multiple gunshot wounds.

{¶3} Triplett initially denied his involvement in the crime. Eventually,

however, Triplett admitted his involvement and agreed to help the police in exchange

for not being charged with any crimes. As part of his agreement, Triplett had to

testify against appellant and Hudson.

{¶4} A Mahoning County Grand Jury indicted appellant on one count of

aggravated murder, a first-degree felony in violation of R.C. 2903.01(B)(F), and one

count of aggravated robbery, a first-degree felony in violation of R.C.

2911.01(A)(1)(C), both with firearm specifications. Hudson was also indicted on

aggravated murder and aggravated robbery charges with firearm specifications.

{¶5} Prior to trial, appellant and plaintiff-appellee, the State of Ohio, entered

into a Joint Request for Stipulation of Use of Polygraph Test. Per this stipulation, the

parties agreed that appellant would submit to a polygraph test. If appellant failed the

polygraph test, then the results of the test would be admissible at trial. If, however,

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appellant passed the polygraph test, the state would dismiss all charges against him.

Appellant took the polygraph test and failed.

{¶6} Consequently, the matter proceeded to a jury trial. The jury listened to

testimony from numerous witnesses including Triplett, who implicated appellant and

Hudson. The jury also heard the results of the polygraph test. The jury found

appellant guilty as charged.

{¶7} The trial court subsequently held a sentencing hearing where it

sentenced appellant to 20 years to life in prison on the aggravated murder count, ten

years on the aggravated robbery count, and three years on the two firearm

specifications which the court merged for purposes of sentencing. The court ordered

appellant to serve the sentences consecutively for a total prison term of 33 years to

life. Appellant filed a timely notice of appeal on August 19, 2014.

{¶8} Appellant now raises two assignments of error. He concedes that we

are to review both assignments of error for plain error because there were no

objections in the trial court to the issues he now raises.

{¶9} Plain error is one in which but for the error, the outcome of the trial

would have been different. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804

(1978). To prevail on a claim governed by the plain error standard, an appellant must

demonstrate that the trial outcome would have been clearly different but for the

alleged error. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).

With this standard of review in mind, we turn now to appellant’s assignments of error.

{¶10} Appellant’s first assignment of error states:

THE TRIAL COURT ERRED IN ITS INSTRUCTIONS RELATIVE

TO THE ADMISSION OF POLYGRAPH TESTIMONY.

{¶11} In this assignment of error, appellant takes issue with the trial court’s

jury instruction regarding the polygraph test. As to the polygraph test results, the trial

court instructed the jury:

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The results of a polygraph examination have been admitted into

evidence. The results obtained from the polygraph examination are not

admitted to prove or disprove any element of the crime with which the

Defendant is charged. Rather, the testimony is admitted to indicate that

at the time of the examination, the Defendant was not telling the truth.

You may consider the testimony for the purpose of testing the credibility

of the Defendant.

(Tr. 677-678).

{¶12} Appellant asserts the court’s instruction failed to comply with the fourth

condition for admitting polygraph test results set out in State v. Souel, 53 Ohio St.2d

123, 372 N.E.2d (1978), at the syllabus.

{¶13} In Souel, the Ohio Supreme Court held that polygraph test results are

admissible in a criminal trial for purposes of corroboration or impeachment as long as

four conditions are met. Id. The fourth condition, which appellant takes issue with in

this assignment of error, is:

(4) If such evidence is admitted the trial judge should instruct the jury to

the effect that the examiner's testimony does not tend to prove or

disprove any element of the crime with which a defendant is charged,

and that it is for the jurors to determine what weight and effect such

testimony should be given.

Id.

{¶14} Appellant claims the court’s instruction went beyond that set out in

Souel and should not have included the instruction that the polygraph could be

considered in determining whether appellant was telling the truth or that the jury

could consider it for the purpose of testing appellant’s credibility. But Souel

specifically states in its syllabus that evidence of polygraph test results is admissible

“for purposes of corroboration or impeachment.” Corroboration and impeachment

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are ways to test credibility and truthfulness. Thus, the Ohio Supreme Court has

specifically indicated that polygraph evidence can be used for testing credibility as

long as Souel’s four conditions are met. Therefore, the trial court’s instruction was a

correct statement of the law.

{¶15} Moreover, the trial court’s instruction tracked the language set out in the

Ohio Jury Instructions, which provides:

The results of a polygraph examination have been admitted into

evidence. The results obtained from the polygraph examination are not

admitted to prove or disprove any element of the crime with which the

defendant is charged. Rather, the testimony is admitted to indicate at

the time of the examination the defendant (was) (was not) telling the

truth. You may consider the testimony for the purposes of testing the

credibility of the defendant.

Ohio Jury Instructions, 2 CR Ohio Jury Instructions 409.23 (2015).

{¶16} The comment to this jury instruction states that the results of a

stipulated polygraph examination are admissible for corroboration or impeachment if

they are presented in accordance with Souel, 53 Ohio St.2d 123.

{¶17} “Ohio Jury Instructions is a compendium of standard instructions

prepared by the Jury Instructions Committee of the Ohio Judicial Conference, and is

generally followed and applied by Ohio's courts.” State v. Thompson, 2d Dist. No.

22984, 2010-Ohio-1680, ¶174; State v. Ferguson, 10th Dist. No. 07AP-640, 2008-

Ohio-3827, ¶47.

{¶18} Other appellate courts have found that where a jury instruction tracks

the language of the corresponding Ohio Jury Instruction there is no plain error with

the instruction. State v. Harwell, 2d Dist. No. 25852, 2015-Ohio-2966, ¶64 (“because

the trial court's instruction as to ‘cause’ provided a correct statement of law and is

taken almost verbatim from the Ohio Jury Instructions, the trial court did not err, let

alone commit plain error, when it instructed the jury as such”); State v. Moore, 163

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Ohio App. 3d 23, 2005-Ohio-4531, 836 N.E.2d 18, ¶86 (2d Dist.) (“These instructions

are in accord with those set out in the Ohio Jury Instructions and therefore, it was not

error, let alone plain error, for the trial court to use them.”); State v. Perry, 8th Dist.

No. 43992, 1982 WL 2506, *4 (July 29, 1982) (trial court's instruction on credibility

fairly tracked the standard Ohio Jury Instructions charge, and therefore was a correct

statement of the law).

{¶19} And at least one other court has approved the use of the exact same

instruction as the trial court used here. In State v. Russell, 10th Dist. No. 03AP-666,

2004-Ohio-2501, the appellant argued the trial court committed plain error in allowing

certain testimony by the polygraph examiner regarding the reliability of the polygraph

and its probative value. On appeal, the court noted that the examiner’s statement

was clearly beyond the scope of permissible testimony. Id. at ¶48. But it stated that

the trial court subsequently gave the correct instruction regarding the polygraph

evidence:

The results of a polygraph examination have been admitted into

evidence. The results obtained from the polygraph examination are not

admitted to prove or disprove any element of the crime with which the

Defendant is charged. Rather, the testimony is admitted to indicate

[whether] at the time of the examination, the Defendant was not telling

the truth. You may consider the testimony for purposes of testing the

credibility of the Defendant.

Id. The court found that this instruction was “correct, comprehensive, and clear.” Id.

at ¶49.

{¶20} The trial court’s instruction complies with Souel’s fourth condition and

does not impermissibly go beyond the law set out in Souel. The instruction is a

correct statement of the law set out in Souel that polygraph evidence maybe used for

corroboration or impeachment, in other words to test credibility, as long as certain

conditions are met. Additionally, Ohio Jury Instructions are generally followed and

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accepted by Ohio courts. Plain error does not exist here where the trial court gave

an instruction verbatim from the Ohio Jury Instructions that is a correct statement of

the law. Moreover, appellant does not allege that the court’s instruction was an

incorrect statement of the law. And the identical instruction as the one given here

has been approved by at least one other appellate court as correct, comprehensive,

and clear.

{¶21} Accordingly, appellant’s first assignment of error is without merit.

{¶22} Appellant’s second assignment of error states:

THE COURT ERRED PLAINLY IN ALLOWING INTO

EVIDENCE A STIPULATED POLYGRAPH ABSENT A PROPER

FOUNDATION UNDER EVIDENTIARY RULE 702 FOR ITS

ADMISSION.

{¶23} Here appellant contends the polygraph results did not meet Evid.R.

702’s requirements for admissibility. Appellant contends the state failed to establish

the general scientific reliability of a polygraph test. He asserts the state was required

to offer evidence to guide the jury as to how they would determine whether the

polygraph test was given in such a way as to yield a reliable result. Moreover,

appellant argues this failure impacted his counsel’s ability to cross-examine relative

to the conditions under which the test was administered and possibilities for error as

required by Souel, supra. Appellant also argues that his polygraph test was

unreliable because he answered “yes” to a control question of whether he lived in

Canada, when in fact he lives in the United States, and the polygraph test showed

his “yes” answer was non-deceptive.

{¶24} In addition to the condition discussed in appellant’s first assignment of

error regarding the jury instructions, Souel set out three other conditions for admitting

polygraph test results for purposes of corroboration or impeachment:

(1) The prosecuting attorney, defendant and his counsel must

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sign a written stipulation providing for defendant's submission to the

test and for the subsequent admission at trial of the graphs and the

examiner's opinion thereon on behalf of either defendant or the state.

(2) Notwithstanding the stipulation, the admissibility of the test

results is subject to the discretion of the trial judge, and if the trial judge

is not convinced that the examiner is qualified or that the test was

conducted under proper conditions he may refuse to accept such

evidence.

(3) If the graphs and examiner's opinion are offered in evidence

the opposing party shall have the right to cross-examine the examiner

respecting: (a) the examiner's qualifications and training; (b) the

conditions under which the test was administered; (c) the limitations of

and possibilities for error in the technique of polygraphic interrogation;

and, (d) at the discretion of the trial judge, any other matter deemed

pertinent to the inquiry.

Souel, 53 Ohio St.2d at the syllabus.

{¶25} The first condition is not in dispute here. The parties signed a Joint

Request for Stipulation of Use of Polygraph Test, which is part of the record.

{¶26} As to the second condition, Michael Lopresti, a polygraph examiner for

the Ohio Bureau of Criminal Identification and Investigation (BCI) who administered

the polygraph test to appellant, testified about his qualifications. Lopresti stated that

he has been conducting polygraph tests for 29 years. (Tr. 258). And for the last 15

years his only job duty at BCI has been to administer polygraph tests. (Tr. 258).

Lopresti testified that he attended a polygraph school for ten weeks and attends

continuous training twice a year. (Tr. 259). Additionally, Lopresti testified that he is a

member of the Ohio Association of Polygraph Examiners. (Tr. 259).

{¶27} As to the conditions of appellant’s test, which is also part of Souel’s

second condition, Lopresti testified that all standard procedures were followed in

administering appellant’s test. (Tr. 278). These procedures included recording

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appellant’s blood pressure, respirations, and sweating during the test. (Tr. 260).

Lopresti indicated that these three physiological responses are involuntary, which is

why they are used. (Tr. 261). He discussed further procedures including providing

appellant with information about the test, having him fill out standard forms, and

going over medications appellant was taking. (Tr. 278). Lopresti stated that

appellant indicated he was taking Coreg on a daily basis. (Tr. 281). Lopresti testified

that Coreg would not affect the test. (Tr. 282). Lopresti stated that appellant

indicated that he had not used illegal drugs or alcohol in the last 24 hours. (Tr. 281).

{¶28} Given this testimony by Lopresti, the second Souel condition was met.

The above testimony was sufficient to convince the trial court that Lopresti was

qualified to administer the polygraph test and that the test was conducted under

proper conditions. There was no evidence to the contrary.

{¶29} As to the third condition, appellant’s counsel cross-examined Lopresti

extensively. (Tr. 300-315). Counsel cross-examined regarding Lopresti’s

qualifications. (Tr. 300-304). Counsel questioned him regarding appellant’s actions

during the test. (Tr. 305-308). Counsel also cross-examined Lopresti regarding the

success rate of polygraph tests. (Tr. 308-309). Counsel then questioned Lopresti

about the questions he asked appellant. (Tr. 310-314). Finally, counsel questioned

him about the results he has garnered over his years of polygraph testing. (Tr. 315).

{¶30} This testimony demonstrates that the third Souel condition was met in

this case. Appellant’s counsel was able to cross examine Lopresti on every issue he

deemed relevant. He questioned Lopresti about his qualifications, appellant’s

behavior and how it related to the test, the success rate of polygraph tests in general,

the actual administration of the test, and the results of other polygraph tests that he

has administered.

{¶31} Lopresti’s testimony satisfies the first three Souel conditions for the

admissibility of a polygraph test. Moreover, as discussed in appellant’s first

assignment of error, the trial court’s jury instructions regarding the polygraph test

satisfies the final Souel condition.

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{¶32} Appellant suggests that the state was also required to present evidence

that Lopresti’s testimony met the requirements for expert testimony set out in Evid.R.

702(C):

(C) The witness' testimony is based on reliable scientific,

technical, or other specialized information. To the extent that the

testimony reports the result of a procedure, test, or experiment, the

testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is

based is objectively verifiable or is validly derived from widely accepted

knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably

implements the theory;

(3) The particular procedure, test, or experiment was conducted

in a way that will yield an accurate result.

{¶33} In examining whether Evid.R. 702 applied in place of the Souel’s

conditions for admission of polygraph test results, the Second District stated: “Until

the Ohio Supreme Court holds otherwise, we are bound by the precedent established

in Souel and Davis.” State v. Irwin, 2d Dist. No. 26224, 2015-Ohio-195, ¶34. The

Ninth District has made similar comments: “We disagree with Weaver's conclusion

that the law concerning the admissibility of polygraph tests [since the decision in

Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993)] has changed. State v. Souel, supra, is still the law in Ohio and

has not been modified or overruled.” State v. Weaver, 9th Dist. No. 97CA006686,

1997 WL 823965, at *7 (Dec. 31, 1997).

{¶34} We agree with the Second and Ninth Districts. The Ohio Supreme

Court set out the conditions for allowing polygraph test results in Souel. The Court

has not modified or changed these conditions.

{¶35} Moreover, the Ohio Supreme Court has recognized that a polygraph

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test is not scientifically reliable:

The nature of polygraphs is different from traditional scientific

tests. Most, if not all, scientific tests involve objective measurements,

such as blood or genetic typing or gunshot residue. In a polygraph test,

the bodily response of the examinee to his answers is dependent upon

the subjective interpretation thereof by the examiner. Inasmuch as the

test is not perceived by the profession to be reasonably reliable, its

admissibility is limited in Ohio to situations where the parties stipulate to

its admission. Souel, supra.

State v. Davis, 62 Ohio St. 3d 326, 341, 581 N.E.2d 1362 (1991).

{¶36} Given that a polygraph test is not viewed as scientifically reliable, the

state, in this case, could not have put forth evidence of the general scientific reliability

of a polygraph test as appellant asserts it should have done in order to comply with

Evid.R. 702(C). It is because the test is not generally viewed as scientifically reliable

that polygraph results are only admissible upon stipulation by the parties. Davis,

supra.

{¶37} In sum, the state met the four conditions for admissibility of polygraph

test results. Therefore, plain error does not exist here.

{¶38} Accordingly, appellant’s second assignment of error is without merit.

{¶39} For the reasons stated above, the trial court’s judgment is hereby

affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.