338 Ga. App. 95
Ga. Ct. App.2016Background
- Victim (14) reported that Michael Parfenuk (59) kissed and touched her breasts and genital area; she initially said rape but later clarified fondling. Parfenuk was arrested and gave a statement; victim died before trial.
- At trial Parfenuk testified in his own defense, admitting he kissed the victim on the lips and often gave young girls a ‘‘peck on the lips.’’
- Near the end of a long narrative, Parfenuk spontaneously stated Detective Bradley asked if he would voluntarily take a lie detector (voice stress) test and he agreed. No party objected to that statement at the time.
- On cross-examination the State was permitted to elicit that the test indicated deception and recalled the officer who administered the test to testify that Parfenuk admitted kissing the victim only after being told the test suggested deception. Trial court instructed jury about polygraph evidence.
- Parfenuk was convicted of two counts of child molestation (sexual battery counts merged). He appealed, arguing (1) the court erred in admitting polygraph results because he did not open the door, and (2) sentencing should be for sexual battery only under the rule of lenity and counsel was ineffective for not raising lenity at sentencing.
Issues
| Issue | Parfenuk's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of polygraph/voice-stress results | Parfenuk did not "open the door" by a spontaneous statement about agreeing to take a test; results were inadmissible and highly prejudicial | Parfenuk opened the door by telling jury he agreed to take test and changed his story after the test; results relevant to rebut and explain conduct | Court reversed: admitting test results was abuse of discretion because statement was unsolicited, results exceeded necessary rebuttal, and invaded jury's role as lie-detector; new trial required |
| Sentencing—rule of lenity and ineffective assistance for not arguing lenity | Sentencing should be for lesser offense (sexual battery) under rule of lenity; counsel ineffective for not raising it | Child molestation requires proof of intent to arouse sexual desire and is a distinct (greater) offense; no statutory ambiguity so lenity does not apply; counsel not ineffective | Court affirmed: no lenity issue because statutes require different elements; sexual battery properly merged into child molestation; counsel not ineffective |
Key Cases Cited
- Price v. State, 269 Ga. 373 (polygraph results generally inadmissible)
- Cargill v. State, 255 Ga. 616 (witness testimony that police polygraphed her and it showed truthfulness can open the door)
- Thornton v. State, 279 Ga. 676 (polygraph results inadmissible except by stipulation or to explain relevant conduct/motive)
- United States v. Scheffer, 523 U.S. 303 (jury is the lie detector; polygraph evidence implicates role of jury)