ROBERT SYLVESTER REID v. STATE OF INDIANA
No. 1071S293
Supreme Court of Indiana
July 25, 1972
Rehearing denied October 17, 1972
285 N. E. 2d 279
Theodore L. Sendak, Attorney General, Darrel K. Diamond, Deputy Attorney General, for appellee.
GIVAN, J.—Appellant was chаrged by affidavit with the crime of robbery. Trial by court resulted in a finding of guilty, whereupon appellant was sentenced to the Indiana Stаte Reformatory for a term of not less than ten nor more than twenty-five years.
The record reveals the following:
On November 28, 1970, Mary Phillips was employed at the Whitehоuse Tower restaurant. A person whom she later identified in court as the appellant entered and asked for change аnd a paper bag. At that point she noticed that he was brandishing a revolver. She gave appellant approximately $64. Appellant then ordered her into the restroom threatening to kill her.
Appellant testified that he was elsewhere at the timе of the robbery. A witness called by the appellant verified that he had been with the appellant but could not say for sure whethеr or not it was the day of the robbery.
Prior to trial appellant had petitioned the trial court for an order permitting him to take a polygraph test. His petition reads in part as follows:
“That said Defendant does hereby expressly waive any and all objеctions, and unequivocally agrees that the said Report, may become a part of the record in said Court, as
well as becoming an Exhibit in Defendant‘s Trial, as well as to stipulate taking the said Expert‘s Deposition by interrogatories (or otherwise) or to tеstify in open Court.”
Appellant first contends the only evidence as to his identity was the testimony of Mary Phillips. We have previously statеd that a conviction can be sustained on the uncorroborated testimony of one witness. Jaudon v. State (1970), 255 Ind. 114, 262 N. E. 2d 851, 23 Ind. Dec. 182. This Court will not determine the credibility of witnesses. Coleman v. State (1971), 257 Ind. 439, 275 N. E. 2d 786, 28 Ind. Dec. 37. We again hold that the uncorroborated testimony of one witness is sufficient to support the finding of a trial court.
Appellаnt next claims that the witness Mary Phillips was obviously biased and prejudiced against members of the negro race. Even if we would accept such to be the fact, it would only go to the credibility of the witness and as previously observed this Court will not weigh such credibility. Coleman v. State, supra.
Appеllant next argues that the finding of guilty was not sustained by sufficient evidence. Here again he attacks the credibility of the witness Mary Phillips. We сan only add to the above statements that the testimony of Mary Phillips which was obviously believed by the trial court was sufficient to sustain the finding of said court.
Appellant also addresses the same argument to a claim that there was no proof that he was guilty beyоnd a reasonable doubt. The trier of fact has the right to accept any witness’ testimony or to disbelieve the testimony of any witness. Black v. State (1971), 256 Ind. 487, 269 N. E. 2d 870, 25 Ind. Dec. 637. We can only observe that there was ample evidence before the trial court to sustain a finding of guilty beyond a reasonable doubt.
Appellant next argues that he was denied a fair trial in that evidence was admitted regarding his prior criminal
Appellant lastly argues that it was error for the trial court to admit the testimony of the polygraph examiner as a rеbuttal witness for the state, who testified as to the results of the polygraph test requested by the appellant. In view of the exprеss waiver obtained in appellant‘s petition for the taking of such a test and in view of the fact that he was adequately represented by counsel at the time of such waiver, he cannot now be heard to claim that the state violated his right against self-incrimination by the presentation of such evidence. This Court has previously held that the constitutional guaranty that a person shall not be required to testify against himself is a personal right which may be waived. Appelby v. State (1943), 221 Ind. 544, 48 N. E. 2d 646. In a comparable situation we have held that one whо voluntarily submits to a drunkometer test cannot thereafter assert that he was forced to testify against himself. Wells v. State, supra; Spitler v. State (1943), 221 Ind. 107, 46 N. E. 2d 591. We hold that the appellant expressly waived any right he had against self-incrimination, and that the trial court, therefore, did not err in permitting the state to place in evidence the results of the polygraph test requested by the appellant.
The trial court is affirmed.
OPINION CONCURRING IN RESULT
DEBRULER, J.—In this case appellant filed a Verified Petition for Polygraph Examination, which included the provision:
“That said defendant does hereby expressly waive any and all objections, and unequivocally agrees that the said Report, may become a part of the record in said Court, as well as becoming an exhibit in Defendant‘s trial, as well as to stipulate taking the said Expert‘s Deposition by interrogatories (or otherwise) or to testify in open Court.”
The objection of apрellant‘s trial counsel to the testimony of the polygraph operator at no time contained any claim or mention of appellant‘s rights afforded by privilege against self-incrimination contained in
“Q. What took place there?
A. I conducted a polygraph examination on Mr. Reid.
Q. Did you ask him questions?
A. Yes I did.
MR. LAMBERSON: At this time we interpose an objection as to the result of any tests which the witness may have madе for the reason the Supreme Court of Indiana has outlawed or overruled any tests made in a polygraph examination.”
Thе trial court sustained this objection. The same evidence was offered by the State in rebuttal. Appellant‘s trial counsel renewed the above objection, however, it was then overruled. Appellant‘s counsel does not argue on appeal that the admission of the polygraph findings during rebuttal violated any of his client‘s constitutional rights. Since appel
NOTE.—Reported in 285 N. E. 2d 279.