*1 GOLDTHORPE, Appellant, James W. EXCHANGE, INSURANCE
FARMERS Appellee. corporation, No. CA-CIV 1258. Court of Arizona , Division 2.
Mesch, Rothschild, Marquez & P. C. Clark, Tucson, Jr., H. .for lant.
Chandler, Richmond, Tullar, & Udall Udall, Tucson, D. B. HOWARD, Judge. Appellant-plaintiff, Gold- W. James appellee against
thorpe, insured burglary, personal property loss to due to larceny. August theft and Depart- pellant notified the Tucson Police burglarized ment that his home had been appellee guns and some were taken. refused to was notified of this loss but Ap- any payments under its make appellee against then filed suit alleging breach of the contract. burgla- In its answer denied that place and ry, larceny taken theft or failed to alleged pertain- policy provisions comply with the of loss. issues damages and other In addition opinion, the pertinent to this which are not *2 Forgan, 231, (1971); order P.2d 556 State pretrial the framed issue primary P.2d whether 104 Ariz. trial court was by the entered Chambers, Ariz. provisions the complied with had ; (1969) State policy. insurance Valdez, ; 91 Ariz. (1969) P.2d 603 State v. appellant pretrial order this Based on liabili- summary judgment as to moved called The first witness appellee had aban- ty theory that on the Walsh, police a officer Michael not been a there had its defense that doned City Po- Tucson burglary detail of burglary. he Department. On cross-examination lice opposed for summa- Appellee the motion testified: pretrial contending ry judgment that had “Q. ever another worded, Have inartfully and order guns, a been stolen there has where that a had its defense never abandoned burglary where there was Appel- nighttime burglary not been committed. any- of it what became rumble about pretrial lee to amend moved way? Appellant’s motion include that defense. denied, but summary judgment was No, A. never. appellee’s motion to there was no conversa- any other Q. Did order. investi- about tion with Mr. supplemental inter- Appellant then filed pertaining to this case ? gation appellee’s defense of rogatories relative to if he would submit to asked him answered polygraph examination. a same. polygraph examina- Q. is a What a At the The case was tried to tion? close of again of his case and at the close is a lie detector It case, appellee’s appellant a moved for di- gives that in this area? Who claiming he rected verdict had shown officers. A. Police provisions complied he with all police These motions were officers there there —are Is quali- The case was submitted to denied. is there a officer who found in of the which favor area? in this Appellant a new trial made motion for don’t believe BY MR. CLARK: appeals from which was denied and now really any pertinency or materi- has for new trial and denial of motion ality. jury’s judgment entered on overrules, No, objection BY COURT: verdict. may You answer [sic] Appellant presents following ques- Henry De- Yes, Sergeant Bob tions for review: Dupmeyer (phonetic). tective admitting Did the court err “1. Goldthorpe’s re- was Mr. What appellant objection, over evidence sponse question ? to that refused take a detector examina- lie A. He declined.” tion? by appellant Of- examination re-direct directing 2. Did court err in testified: ficer Walsh appellant a verdict for ?” Officer, asked “Q. said take a ex- that correct? THE LIE amination. DETECTOR TEST [sic] A. Yes. evi In the absence of why he you remember And polygraph test'is reference dence of or Tosatto, ? told that wouldn’t State v. inadmissible. suggested A. When I it to him at his counsel for stated that he did not would, object
residence he indicated that' he and move to strike because he did however, prior so, doing would like to not want to draw undue attention to the talk to I told him that would he testimony. Yet he did so on re-direct ex- fine conferring me and after Having amination. made a tactical deci- sion, counsel he told me counsel advised him appellant will have to live with it and *3 against taking polygraph. cannot use it as an excuse for failure to object. Nagle Conger, Ariz.App. v. you know when Do had this Cf. (1969). conversation ? I believe was on the 5th ? FAILURE TO A DIRECT Do know if—did he indicate VERDICT to or did find out that Mr. Although the trial court did not perfectly would upon denying ap willing, perfectly ready, willing and able pellant’s motion summary for judgment, it polygraph to take the test if Farmer’s is clear that surprised at Company pay Insurance would for the time of trial and had in fact submitted passed if loss Did come into supplemental interrogatories in order to be that information? prepared at appel the time trial of to meet attorney propose I heard his that. Furthermore, defense. no your knowledge, And to is was ever any asserted at trial to cross-ex affairs, still the state of isn’t that cor- questions relating amination to this defense rect? that no place. had in fact taken A. As far as the con- was Evidence on that issue was before cerned. jury any objections appel without on part. As far as lant’s is con- cerned ? The trial refusing court did not in to grant appellant’s motion for I a directed ver- don’t know. I didn’t ask him.” dict. The response by initial the offi Affirmed. cer concerning polygraph test not was objected HATHAWAY, J., to concurring. nor awas motion made C. to strike his subsequent objec answer. The KRUCKER, Judge (dissenting). tion relating to whether quali there were officers in the area to I must dissent. with the test did not challenge previous my colleagues exception testimo of with the of that ny but preceding portion related to the question dealing polygraph with tests. The only. written, question majority 'opinion, When the crucial as was does some- asked concerning appellant’s emphasize question what that there willingness was polygraph test, take the comply of failure no was interposed. policy procedures pertaining proof upon It was incumbent him to However, point. so at May, loss. both sides concede Zakroff v. Ariz.App. comply there was no failure to Simp 443 P.2d Heiderich, policy pertaining son procedures Ariz.App. (1966). loss. ap The of which pellant complains properly strongly before feel that all of the jury since he objected neither concerning to its admis polygraph tests inad- sion nor moved to strike it as highly particularly soon as the prejudicial, missible and
ground for appeared. Central given when no test ob- Copper Company Klefisch, tained an jury answer before the argument P. 629 At oral had refused to take the test. true, everyone agrees, that evi- such It is unless the evidence is, polygraph face, reference to its specifically dence inadmissible or inadmissible, except purpose. I think it is the rule that the majority opinion sustain in prejudicial cases cited admission of evidence must re- opinion turns position.1 although proper objec- sult in reversal properly question of waiver tion is made. I 'further believe that quoted objecting, by counsel, clear from the but it is the evi- majority opinion that the (referring test) dence to the concede, as pertinency materiality, was suffi- 138, cient, particularly stated in in view of the fact that evidence, stipula- that the was al- (1969), all such the absence tion, go any purpose. lowed to after reference was immaterial However, Any in Bowen it objection going *4 poly- clearly to a ample. stated that reference should be As Mr. Udall reason, graph inadmissible for test is states: instructed to disre- the court objection to a certain class an “Where gard testimony and struck it from distinctly and over- made of evidence
record. displea- ruled, need not risk the counsel repeated juries by It is difficult for me to see how mo- court and sure of the testimony tion to strike the of evidence.”' to the same class disregard testimony Udall, be 12' record or could of Evidence Arizona Law § made when at 28. judgment and re- would reverse the for a new trial. mand the cause us, majority
In the case before places great emphasis manner
which the was made. very counsel’s strong, but was made and not ask that
overruled and counsel could testimony be All of the testi- stricken. mony concerning the for the out Arizona, Appellee, STATE of and the After the was in lee. overruled, it had been Appellant. WATSON, E. Dennis by appel- damaging elicited CA-CR 480. No. 1 counsel, Appellant’s redi- Arizona, Court examination, explain attempted rect Division received, already that had Department B. but, argument to this in oral as he stated 27, 1973. court, overemphasize he did not want April Rehearing Denied aspect the case before May 29, 1973. Review Denied The sole basis of point turns on whether or on this timely made. properly or objections were Udall, of Evi- Arizona Law As noted objections must be specific dence § over- court cannot stipulation testimony regard funda it is admissible not contend 1. I do stipulated to. fundamental error error cannot be test is mental Supreme has held that our Court because