State v. Biddle

HIGGINS, Judge,

dissenting.

I would affirm the conviction in this case. The majority opinion overrules prior case law in this state to hold as a prelude to its determination of evidentiary insufficiency, that results of polygraph examinations cannot be admitted into evidence under any circumstances including upon stipulation of the parties. No question of the admissibility of polygraph results upon stipulation of the parties was raised or preserved by the appellant, and no such question was briefed or argued before this Court. Whether the courts of Missouri should without exception exclude the results of polygraph examination should await a case in which such issue is properly presented.

The posture of this case is set by appellant’s five points of error: 1) whether it was error to permit testimony that defendant possessed two bicentennial half-dollars when arrested after it was shown that two such coins were taken in the robbery; 2) whether a mistrial should have been declared following the sheriff’s testimony that bicentennial half-dollars were scarce in the area; 3) whether the polygraph examiner’s questions violated the terms of the stipulation and whether, therefore, his testimony should have been excluded; 4) whether there was evidence to support an instruction on defendant’s responsibility for the robbery; and 5) whether there was sufficient evidence to sustain the conviction. In no way has appellant contended that the polygraph results should be excluded if obtained pursuant to a valid stipulation.

The certification of the case to this Court in the dissent of Pritchard, J., viewed the majority opinion in the court of appeals to be in conflict with Missouri law in three respects: first, that it misstated the circumstantial evidence rule set out in State v. Franco, 544 S.W.2d 533 (Mo.banc 1976) cert. denied, 431 U.S. 957 , 97 S.Ct. 2682 , 53 L.Ed.2d 275 ; and misapplied that rule by finding insufficient evidence to support conviction; second, “there is no preservation of the point on appeal that the polygraph test should have been excluded, i.e. that it was inadmissible for any purpose, . . third, that the majority opinion improperly treated as dicta the holding in State v. Fields, 434 S.W.2d 507 (Mo.1968), that the weight of polygraph results once admitted is the sole prerogative of the jury.

The foregoing statement of the issues presented demonstrates that appellant has not preserved as allegations of error or called upon this Court to consider as plain error that upon which the majority bases its holding; nor has the court of appeals raised such issue. In its posture this case is best determined the same as on original appeal, Rule 83.09. On the issues so presented the conviction should be affirmed.

Appellant’s first charge is that it was highly inflammatory and prejudicial error *196 to permit testimony that defendant had two bicentennial half-dollars in his possession when he was arrested. He argues that the coins could not be identified as belonging to the victim and were therefore not connected to the robbery; and that testimony about them should have been excluded as irrelevant, of no probative value, and clearly prejudicial as it raised the inference that the coins were taken at the time of the robbery. Appellant would thus invoke the rule that money seized from a person accused of a crime involving theft of money cannot be admitted into evidence absent some showing that the seized money came from or had some connection with the robbery. See, State v. Vernor, 522 S.W.2d 312, 314-315 (Mo.App.1975), and cases there collected.

In State v. Ball, 339 S.W.2d 783 (Mo.banc 1960), defendant, convicted of armed robbery, charged error to the admission of testimony that he had $258.02 in cash on his person when arrested three weeks after the robbery. The court held that testimony concerning the money was irrelevant stating that:

The mere possession of a quantity of money is in itself no indication that the possessor was the taker of money charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money found is the same as the money taken is too forced and extraordinary to be receivable.

Id. at 786 .

To be relevant, the court continued, such testimony required as a precondition, “proof or . . .a fair inference from the record that the money in [defendant’s] possession at the time of his arrest came from or had some connection with the robbery . .” The court found no such connection where there was no identifying item associated with the cash and three weeks had elapsed between the robbery and the arrest.

The necessary connection was found in State v. Britt, 504 S.W.2d 38 (Mo.1973). Armed robbers took $300.00 and made their getaway in a damaged car. Part of the money taken consisted of coins rolled in green wrappers. Two and a half hours later a green dime coin wrapper similar to one of those taken was found in the front seat of the damaged car in which defendant was arrested. The amount of money possessed by the car’s occupants totalled $301.29 and the denominations of the currency corresponded to those taken in the robbery to the extent that none exceeded $20.00. The court found that in view of the green wrapper, the similarity of currency denomination, the close time element, and the connection of the damaged car and its occupants with the robbers, it was not irrelevant to show that the car occupants had in their possession a sum of money approximately the same as taken in the robbery.

In State v. Hampton, 275 S.W.2d 356 (Mo.banc 1955), defendant was convicted of larceny where thirty dollars in cash including a five dollar roll of dimes wrapped in green paper was taken. Defendant was arrested the same day and a roll of dimes in green paper was found on his person. The court held:

a five-dollar roll of dimes, wrapped in the same colored paper as the missing roll, was the same day found on the person of defendant was a circumstance admissible in evidence.

Id. at 358 .

Tested by the foregoing, the showing in this case that the change found on defendant included two distinctive coins similar to those taken in a robbery occurring six hours earlier and four or five miles away raised a fair inference that such coins were connected to the robbery. A sufficient connection established, testimony regarding the coins was relevant and no error was committed in its admission. Compare, State v. Vernor, supra, where it was error to admit evidence that $83.50 was found on defendant at the time of his arrest two days after a robbery in which $800.00 was taken absent evidence associating the money found on defendant with the robbery.

Appellant’s next charge is that the court erred iri refusal of a mistrial when Sheriff *197 Morris testified that defendant’s possession of the two bicentennial half-dollars was unusual because, “[t]hey had recently been introduced into circulation and there were not too many of them around the Boonville area.” Defendant’s objection to this testimony was sustained. His request for mistrial was denied and the jury was instructed to disregard the comment. Appellant argues that the court’s admonishment was not sufficient “to remove the taint from the minds of the jurors.”

Mistrial is a drastic remedy to be exercised in those circumstances where the alleged prejudice can be removed in no other way. State v. Parker, 476 S.W.2d 513, 515-16 (Mo.1972). Mistrial was not required in this case because it was clear to the jury that the Sheriff was not purported to have expertise respecting coin circulation; and the substance of the objectionable statement was something the jurors likely knew from their own experience. In these circumstances the court’s instruction to disregard the comment was a proper exercise of discretion. Compare, State v. Wells, 550 S.W.2d 793, 794-795 (Mo.App.1977).

Appellant next charges the court erred in failure to suppress all evidence related to the polygraph examination asserting that the stipulation governing the test and use of its results in evidence was violated in that the examiner “did not use the questions agreed upon in said stipulation” and “used certain questions not included or within the scope of the stipulation.”

The STIPULATION AND AGREEMENT recited and provided:

U * * *

“2. That Thomas Woodrow Biddle after conferring with and receiving the legal counsel of his attorney, Dale Reesman, desired to be given a polygraph test concerning his participation in the herein alleged act of first degree robbery.

“3. That Thomas Woodrow Biddle’s desire to take said polygraph test was his own, voluntary, idea and he has not been coerced, induced or pressured into such decision by any officer or agent of the State of Missouri.

“4. That the parties agree that Thomas Woodrow Biddle shall be given a polygraph (lie detector) test concerning his knowledge and/or participation in the aforesaid acts of robbery by Sgt. G. F. Payne of the Missouri State Highway Patrol, using the equipment of the Missouri State Highway Patrol located at the Headquarters of Troop F in Jefferson City, Missouri, and that said test shall include, but not be limited to the following type of question, to-wit:

I. KNOWLEDGE QUESTIONS:

A. Do you know who robbed the liquor store in Otterville?

B. Have you ever been to the Wagon Wheel Liquor Store in Otterville, Missouri?

C. Have you ever been to the Wagon Wheel Liquor Store with Ralph Dyke?

II. DIRECT QUESTIONS:

A. Did you assist in the armed robbery of the Wagon Wheel Liquor Store in Otterville on September 9, 1975?

B. Did you receive any of the money which was stolen from the Wagon Wheel Liquor Store in Otterville?

C. When you were arrested on September 10, 1975, along Highway No. 50 by the Missouri State Highway Patrol was any part of the money which you had on your person taken from the Wagon Wheel Liquor Store?

D. Are you withholding any information about the robbery of the Wagon Wheel Liquor Store?

III. CONSPIRACY QUESTIONS:

A. Did you plan with anyone to rob the Wagon Wheel Liquor Store in Ot-terville?

B. Have you told me the entire truth concerning the robbery of the Wagon Wheel Liquor Store in Otterville?

IV. GENERAL QUESTIONS:

A. Do you live in the United States?

B. Is your first name Tommy?

C. Are you forty years old?

“5. That the defendant, Thomas Woodrow Biddle, does hereby absolutely and irrevocably waive each and every ob *198 jection, including, but not limited to the objections as to relevancy, materiality, competency, constitutionality, reliability, and self-incrimination, to the use in evidence at any stage of the prosecution of the herein described robbery charges of the results of the polygraph test.

“6. That the parties agree that Sgt. G. F. Payne should be permitted to testify, for either the State of Missouri or the defendant, at any stage of the herein described robbery proceedings about the polygraph test of Thomas Woodrow Biddle, including a description of the test, the equipment used in testing, the questions and answers asked and given, defendant Thomas Woodrow Biddle’s responses as recorded and Sgt. Payne’s conclusion drawn from the polygraph test, including the issue whether Sgt. Payne believed defendant Thomas Woodrow Biddle’s answers were truthful or not.”

Appellant’s assertion that some of the questions asked by the examiner were outside the scope of questions permitted by the stipulation is refuted by specific provision in the stipulation that questions asked, “shall include, but not be limited to . . . .” Thus, use of questions not listed did not violate the terms of the stipulation.

Appellant would support his assertion that the examiner did not use some of the agreed questions by argument that all listed questions in the agreement were mandatory and the examiner’s deviation from them rendered the agreement void. He contends that of twelve such questions, at least five were omitted, and substantial changes were made in three.

Had the intent of the parties been that the test include each of the listed questions, such could easily have been expressed. Instead, the parties stipulated the type of questions to be asked and provided examples for each of the four categories. Webster’s Third New International Dictionary defines “type” as something that serves as a symbolic representation; a particular kind, class, or group. Listed as synonyms are “kind” and “sort”. Thus it appears from the stipulation that the parties intended to provide the areas of inquiry by the examiner without specifying the exact questions to be used.

The record demonstrates that included in the questions actually used by the examiner were questions of each of the four types required by the stipulation. The expressed purpose of the parties was to obtain an expert opinion as to the truth of defendant’s responses to questions “concerning his participation in the herein alleged act of first degree robbery.” The stipulation should be interpreted in view of the result the parties intended to accomplish. State v. Jones, 539 S.W.2d 317, 318 (Mo.App.1975). The examination as conducted served this purpose and did so within the terms of the stipulation and agreement.

Appellant charges error in giving Instruction No. 5 (MAI-CR 2.10):

All persons are guilty who knowingly act together with the common purpose of committing an offense, or who, whether present or not, knowingly and intentionally aid or encourage another in committing it, and whatever one does in furtherance of the offense is the act of each of them.

The presence of a person at or near the scene of an offense at the time it was committed is alone not sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence.

Appellant argues that “since there was no substantial evidence of affirmative participation” by defendant, this instruction was not supported by evidence; and because there was no evidence that defendant was present at or near the scene of the robbery, the second paragraph of the instruction should have been omitted in accordance with Note 3, Notes on Use, MAI-CR 2.10.

This argument is resolved in the disposition of appellant’s final contention that the evidence in this case is not sufficient to sustain the conviction. In this connection appellant asserts “there was no direct evidence of appellant’s participation in the *199 robbery” and “no credible circumstantial evidence of [his] involvement” in that “the only evidence was appellant’s testimony regarding the polygraph examination; the arrest of [defendant] on foot several miles from the scene, some five hours later” and “possession of two bicentennial half-dollars at the time of appellant’s arrest.” He argues that the place of arrest was consistent with his being stranded in the Otterville area and being in the process of walking home; he did not attempt to hide, although there were hiding places in the vicinity and he was lying in the roadside ditch because he was intoxicated; the change in his possession was consistent with some success in the poker game and his evening’s start with some fifteen dollars in change given him by his father.

In a determination of the sufficiency of evidence to support conviction all evidence tending to support the verdict must be considered as true, contrary evidence disregarded, and every reasonable inference supporting the verdict indulged. Where the conviction rests on circumstantial evidence, the facts and circumstances to establish guilt must be consistent with each other, consistent with the guilt of the defendant, and inconsistent with any reasonable theory of his innocence. In such cases the evidence need not be conclusive of guilt, nor must the evidence demonstrate the impossibility of innocence. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1977), cert, denied, 431 U.S. 957 , 97 S.Ct. 2682 , 53 L.Ed.2d 275 .

Viewed in accord with the foregoing, the evidence demonstrates a submissible case:

At approximately 8:30 p. m., two men actively participated in the robbery of the victim taking, among their loot, sixty to seventy dollars in change including two distinctive coins. Minutes later law officers arrived and in a short time an area wide search by police and private citizens aided by Citizen Band radios began. Later at 2:30 in the morning it was reported that defendant was seen entering a ditch four or five miles from the scene of the crime along the highway leading from the scene, and he was there discovered by the trooper. It could be inferred that defendant was attempting to conceal himself 1 and that when confronted by the trooper, he pretended to be drunk although he was not. In his possession was $22.50 in change including two distinctive coins identical to those taken some six hours earlier. While awaiting trial for this offense, defendant escaped from jail 2 and had to be brought back from the state of California to stand trial. When asked by a qualified polygraph examiner whether he participated in, had knowledge of, and received proceeds from the robbery, defendant gave negative answers which in the opinion of the examiner were deceptive. Taken together, these circumstances are a connected chain of events, consistent with each other, consistent with defendant’s guilt, and inconsistent with any reasonable theory of defendant’s innocence, including his own. These circumstances also support defendant’s active participation and his presence at the scene of the robbery for purposes of Instruction No. 5 in form MAI-CR 2nd 2.10.

The majority has determined sua sponte, without contention or demonstration of manifest injustice or miscarriage of justice for purposes of relief of plain error under Rule 29.12(b), that polygraph results are not admissible under any circumstances including the valid stipulation to their admissibility in this case. This determination provides the basis for the conclusion that the evidence is insufficient to sustain conviction.

Case law in Missouri relieves of any necessity to resort to cases from foreign jurisdictions for resolution of the question thus posed.

In State v. Fields, 434 S.W.2d 507 (Mo.1968), defendant was charged with armed robbery. He entered into a stipulation with *200 the State to take a polygraph test and specifically waived “absolutely and irrevocably each and every objection to the use in evidence by the prosecution of the results of the said test.” The results, in the opinion of the examiner, indicated that defendant “was attempting deception on the questions that pertained to the offense” and that his “answers denying implication were deceptive answers.” On appeal from his conviction, defendant challenged admission of the polygraph results on self-incrimination grounds. In affirming the conviction the court held:

none of defendant’s constitutional rights or privileges were infringed, under these circumstances, by the admission of this evidence. The weight of the evidence was solely for the jury, in the light of a most extensive cross-examination.

Id. at 515 . The Court declined to rule upon the admissibility of polygraph evidence from the standpoint of the scientific acceptance or nonacceptance of the tests or their accuracy on the ground that in view of the stipulation by defendant waiving his objections,

It would be almost unthinkable to permit defendant now to reverse his position and oppose the reception of this evidence for the sole reason the results were not favorable.

Id. at 513 .

In State v. Scott, 570 S.W.2d 813 (Mo.App.1978), defendant was charged with common assault. Prior to trial he stipulated to take a polygraph test and to admissibility of the results. The test proved unfavorable to defendant and he was convicted. On appeal he challenged the trial court ruling which denied cross-examination of the polygraph expert as to the rationale behind the general rule that the results of a polygraph are not admissible. In affirming the conviction the court said,

Absent the written stipulation entered into between defendant and the state, the results of the polygraph examination administered to the defendant would have been inadmissible as evidence because they lacked scientific support for their reliability. State v. Weindorf, 361 S.W.2d 806, 811 (Mo.1962); State v. Cole, Mo., 188 S.W.2d 43, 51 , motion den. 354 Mo. 181 , 189 S.W.2d 541 (1945); and State v. Jacks, 525 S.W.2d 431, 435 (Mo.App.1975). However, the written stipulation entered into between the parties gave the polygraph examination administered to defendant a legal aura of reliability, thereby infusing the conclusive results obtained with probative value.

Id. at 814-15.

In State v. Mick, 546 S.W.2d 508 (Mo.App.1976), defendant was convicted of first degree robbery. On direct examination defendant testified that prior to trial she had arranged to take a polygraph examination. On appeal the court held that once defendant had “opened the door” on the issue of the polygraph, it was not error for the State to inquire on cross-examination as to whether the test had ever taken place and what its results had been. Citing State v. Fields, supra, the court stated:

It is the general rule in this state that the results of polygraph examinations are inadmissible as evidence because they lack scientific support for their reliability. . However anomalous it may be, the parties, by stipulation, may waive objections to the admission of polygraph examinations and their results, and in that sense imbue them with reliability and probative value.

In State v. Ghan, 558 S.W.2d 304 (Mo. App.1977), defendant was convicted of robbery. On appeal he attacked the scientific reliability of the polygraph test results entered into evidence by the State. The court held:

In Missouri, by stipulation of the parties, polygraph evidence is admissible in a criminal trial. . . . While he knew he did not have to take the test, defendant requested he be given a polygraph exam. . . . Defendant’s strategy backfired, and now he seeks to escape the stipulation by raising the scientific reliability objection. There was no failure by the state to fulfill its part of the bargain —defendant’s only complaint is that his *201 hoped for result was destroyed by the test. Defendant cannot challenge testimony, the receipt of which was stipulated by him. ... By requesting and agreeing to take the test and stipulating that the results would be received into evidence, defendant waived his objections to admissibility. .

Id. at 307-308 .

Thus the law in Missouri has consistently held that irrespective of scientific reliability of polygraph examinations, the parties by stipulation, for reasons of their own, can make the results of such tests admissible. As part of that stipulation, either party may knowingly and intelligently waive any or all challenges to the conduct, reliability, and constitutionality of the test; and upon a finding that the stipulation is valid, the parties should not be permitted to renege on their agreement.

As demonstrated above, evidence of the circumstances surrounding the robbery, including the results of the polygraph examination, was sufficient to sustain defendant’s conviction. Accordingly, and for the reasons stated, I cannot join the majority, and would affirm the judgment of conviction.

. Evidence of concealment by a defendant is relevant on the issue of his guilt. State v. Hamilton, 569 S.W.2d 24 (Mo.App.1978).

. Evidence of escape by a defendant bears on the issue of his guilt of the charge on trial, State v. Holt, 465 S.W.2d 602 (Mo.1971), the weight to be determined by the jury, State v. Hudson, 491 S.W.2d 1 (Mo.App.1973).