The opinion
Tom Glaze, Justice, dissenting. The court reverses the appellant’s rape convictions because the state withheld the questions propounded to appellant and the tapes resulting from a polygraph examination given him. If appellant had been given these materials, everyone agrees such evidence would have been inadmissible at trial. Nevertheless, the appellant claims if he had received the polygraph materials, he might have shown that the confession he gave, following the examination, resulted from the coercive manner by which the officer administered the polygraph test.
As I understand appellant’s theory, the officer asked appellant questions pertaining to the rape allegations, the appellant denied he committed the crimes, but during the questioning, the officer repeatedly told the appellant that he did not believe appellant’s denials. In sum, appellant argues his confession that he raped his daughter twice may have hinged upon whether the officer used trickery or deceit in securing the confession, and, therefore, appellant was entitled to the polygraph results so he could impeach the officer’s credibility.
At the suppression hearing held a month before trial, appellant never attempted to proffer the polygraph materials he was seeking. In fact, when appellant’s counsel cross-examined the officer who administered the polygraph test, the officer declared that he had a list of the questions he had asked appellant during his test and told counsel he could see them. Appellant’s counsel ignored the officer’s offer, but instead he merely cross-examined the officer concerning several of the questions.
Nor did the appellant attempt to proffer the polygraph tapes that resulted from his polygraph test. The majority curiously suggests such a proffer would have been useless on appeal because this court would be unable to understand the tapes. Such a comment begs the question as to why the appellant failed to make his record. Obviously, upon the remand of this case, appellant will be required to cross-examine the officer regarding the tapes — which is exactly what appellant should have done at the suppression hearing held prior to his trial.
In reality, this court is left to indulge appellant’s mere speculation that now, upon remand, he might be able to show that the officer tricked him into confessing when the tapes indicated appellant was telling the truth when he denied having raped his daughter.
Serious question exists concerning whether polygraph test results are discoverable materials. The state cites authority that holds they are not. See State v. Gum, 309 S.E.2d 32 (W. Va. 1983); Anderson v. State, 241 So. 2d 390 (Fla. 1970); State v. McGee, 91 Ariz. 101 , 370 P.2d 261 , cert. denied, 371 U.S. 844 (1962). However, assuming such materials should be discoverable, surely the defendant must show how he was prejudiced by his having been denied the information. Here, appellant completely failed in this respect.
At the suppression hearing, the state showed that appellant signed a waiver and volunteered to take the polygraph test. No evidence was offered showing he was abused or prolongedly questioned prior to having given his confession. The evidence showed the appellant was forty-two years old, had a twelfth grade education and had been given his Miranda rights. The officer who gave the polygraph test related that the appellant was never promised anything and that he voluntarily gave his statement. These matters clearly were within the trial court’s province to believe or not. The trial court stated that from the totality of the circumstances, it believed appellant’s confession was voluntary, and it admitted the statement into evidence which reflected the appellant had sex with his twelve-year-old daughter on two separate occasions.
The trial court properly conducted a suppression hearing regarding the polygraph information and confession issue, and the appellant failed to offer evidence below showing the trial court was wrong in denying his motion to suppress his confession. The majority now improperly allows appellant another or belated opportunity to show that the trial court’s ruling prejudiced him, and in doing so, it apparently also allows him a new trial as well. Cf. Moore v. State, 303 Ark. 1 , 791 S.W.2d 698 (1990). I believe this court is wrong in allowing such relief and therefore respectfully dissent.
Hays and Turner, JJ., join this dissent.