*1 in Benningfield, court Wall affirmed SE2d entered, Wall filed After the of this court was in trial The trial court to add a court. party a motion Crockett, appeals. Gay denied the motion and Wall 673) 248, (1963), court held: court the case’s former the remittitur from this "When action court, only here reached the appearance the court below judgment under our decision and this court the judgment could take was make the an order court and to enter of the trial judgment Sum abatement.” See also sustaining plea Giordano, & Assoc. mer-Minter amend after (1974), plaintiff sought entered for de ordered to be summary this court fendant. the motion of denying court did not err
appellant. concur. All
Judgment affirmed. 2, 2, 197 Submitted November Decided November Rehearing 1, denied December III, Wall, pro Hylmon Thomas se. Clarke, Jr., Nixon,
Arthur H. Nixon & for appellees. v. THE 31215. SCOTT STATE. v. THE
31216. LIGHT STATE. curiam.
Per At rape. their for appeal Scott and convictions Light Each attorney. represented by trial both were same sentence was sentenced to 20 half years, though Light’s was probated. midnight
This arose out of prosecution criminal August at a in Gordon County, altercation motel 1974, involving occupying between two fight groups prosecutrix, rooms. adjacent group composed One husband, friends, whom were her and three women all of staying group Scott, in the same room. The other Light, and Scott’s woman friend. Scott had been drinking, prosecutrix. Prosecutrix, her group husband, testified two women her appellants’ having open approached their door of (prosecutrix’) room with invitations to come *2 Upon being appellants refused, drink. turned obscene and wielding Others, violent and attacked the Scott tool. tire group jumped thinking Prosecutrix’ windows, out of she the actually also, but she had crawled into fled appellants. and báthroom that was left alone with She testified couple times, -Scottknocked her unconscious a and raped Light present. her returned while When she to gone, way consciousness and found them she made her reported the front of the motel that she had been raped. already by Police had been summoned the others. The medical evidence that she suffered emotional and physical eye, trauma, a bruise left above the a bruise on jaw, her and an abrasion on her ankle. The doctor found no pelvic injuries, but there was crusted blood from an perineal source unknown the area. prosecution presented also at trial document
signed by acknowledging Scott his desire that he be rights, administered a lie detector test. It recited his voluntary. ‘the fact that the test was The document had a signed again at second division the bottom he after reiterating test, the his consent. After the document was presented testimony admitted into evidence the state polygraph testified, of the examiner. He without objection, gave pursuant that he examination agreement Scott’s evidence that the results would admitted
regardless showed; of what it but that he advised testing Scott before that he could still cancel out of that if and refuse the test he desired. Scott chose testimony explained be tested. The examiner’s test by responses. gave and the chart made He his Scott’s unambiguous conclusion that the test were responses that Scott’s indicated he lied when he denied raping prosecutrix. operator polygraph When the Light signed asked whether defendant a lie detector objected form, consent defense counsel and the district attorney question. withdrew the verdicts, read they its jury reached When "District occurred: following and the attorney the district charged as guilty find defendants Attorney: jury We the and it is signed the 24th day September, any Did word you The Court: foreman, Your Honor. respect to one to the court with say wanted to you court was indicated when the you defendant as are not doing The Court: Your room? The Foreman: No sir. think has been taken. point that? The Foreman: We has point think the Sir? The Foreman: We The Court: been taken.” must
A
find that
majority of this court
Jordan and
and a
granted.
be reversed
new
defendants
in the
find reversible error as to both
Ingram
testimony
even
admission
of the
without
Justices by harm the in the failure to show absence of error state’s improper jurors. contact with the Watkins Ga. 678 Wilson error are without enumerations of remaining
merit. concur, except All the Justices
Judgment reversed. Nichols, J., J., Hall, J., Undercofler, P. who C. dissent. 7, December
Submitted June Decided Enloe, Jr., L. for Scott. Roland Collins, Jr., Light. L. for Robert Charles Attorney, N. District Vaughn, David Bolton, K. Arthur Crawford, Attorney, Assistant District General, appellee. for Attorney Justice, dissenting. Hall, in anomaly minority This case is an that a of Justices enumerations of combined to the various error reverse convictions the require Fortunately a new trial. majority opinion is not a but it does binding precedent, apparently represent the of the individual Justices views opinion. on the in principles stated vote to reverse the judgment against Two Justices the Scott because admission of his polygraph examination which came in not only without objection but the upon stipulation between state counsel for Scott and Five find Light. Justices no error. vote
Two Justices to reverse the judgment Light because of the above admission which not came only in but without never in objected by court, any including one, than any other grounds urged those by Scott himself. never Light has sought dissociate himself from Scott’s test. These two Justices made simply up that in argument his behalf. Five Justices find no error. four reverse
Three of above vote to defendants of alleged of both because trial in his with the judge malfeasance contact even though is in the record during whatever was known raised by any objection trial and not for by nor new trial. motion The majority opinion even holds that the state failed to carry burden of no harm in showing by contact face of the fact state had no any notice such contention because never been made defendants at any point court an when evidentiary hearing could have been held what explore actually on earth happened. How can the carry state any appellate burden court to show what meant cold record an ambiguous reference to an off-the-record proceeding?
Polygraph Evidence Appellants argue are inadmissible in Georgia consent, even with defendant’s *4 State, and they rely v. primarily App. on Famber 134 Ga. (213 525) (1975) SE2d ruling that such results were not admissible even if agreed defendant to their admission, and that such results had no value. probative question here be presented cannot answered glibly said citing opinions which facts differing are no
generally polygraph that results inadmissible them Our matter who offers into evidence. is question clearly limited one: Where record shows agreed Scott, and attorney between Scott’s the state before test, test, after the and admissible, such and where results should the state offered the and the defense no evidence made objection, should the trial court its own motion have refused to admit this and should agreed-upon evidence we reverse these convictions he failed now because to censor this evidence?
The general principle is that unless some of rule it, shall prevents parties evidence be allowed to present desire, to the court and they whatever their of attempt prove case. No rule evidence prevents sides, admission, of polygraph both of results, Georgia as brief examination of authorities will shpw- (146 776) State, Salisbury SE2d
(1966) this court considered the for the first time question concluded, approach after of other examining that, jurisdictions, the results of lie detector examinations There, inadmissible. sought evidence, it, introduce this the court and this excluded court agreed; but the no agreement by reflects state to the introduction evidence benefiting Thus, the defendant. the facts are like not 19(214 those Recently, before us. Stack 514) (1975) SE2d proposition this court reiterated the admissible; polygraph results were but not there the defense made continuing objections to the state’s offer Co., that evidence. In Johnson v. Aetna Ins. Ga. App. 85) SE2d (1971), the examination results were evidence; never Moss, offered in 121 Ga. Wallace 196) (1970) App. merely ruled without discussion that the court did not err to admit refusing examination, the results of a 16-year-old stepbrother of a child over custody whom a dispute was case raging. That civil is here. inapposite Appeals The Court of correctly applied stated law in Cagle v.
(1974). There, conviction reversed because *5 defendant over polygraph results were admitted objection his at where there was no agreement parties between the this evidence be admitted. The court reiterated the general rule against admissibility, but limited its ruling carefully: "Neither an agreement to take a polygraph, one, nor the taking constitutes a waiver of a right object to the admission of its results absent an express stipulation evidence, the par ties admissibility” its App. at (Empha I supplied.) sis read the italicized language refer to an express not necessarily a written stipulation entered formally Thus, into the record. Cagle emphasizes that parties may agree that this evidence shall be admissible. This makes of Famber v. supra, purports which to rely on Cagle, of it. misreading Famber if ruled that even agreed the test results might admitted, they were inadmissible without probative value. Both Famber’s conclusions were erroneous.
Here, despite the belated objections appeal raised on counsel, by Scott’s new it parties is clear that all agreed before trial to the introduction of this evidence and at trial honored that agreement. Since nothing required the court to exclude such evidence, the test and the testimony polygraph examiner both properly admitted. years, recent numerous jurisdictions
recognized that
the state of
art
has so advanced that
where polygraph examination
upon
stipulation
is taken
that the
evidence,
results will be
admissible
the results
are admissible.
Co.,
Herman v.
Star
Eagle
Ins.
396 F2d
(9th
(CD
1968),
Cir.
affirming
FSupp.
Cal.
1966);
v. A Juvenile,
Commonwealth
Stipulation the Result will be Admissible Evidence, 53 ALR3d 1005
Because no to this evidence made at trial, and no question prior it arose to the regarding appeal phase, is not in this necessary opinion to decide qualifications what the examiner and the have, test must and what formal requisites stipulation must possess to overcome a at challenge trial and authorize the trial court to exercise its discretion favor of it. admitting The rule is that polygraph results are not inherently inadmissible *6 value; or without probative here, a stipulation was claimed and made, no this evidence was properly admitted.
Judge Jury Appellants assert judge held unauthorized and unreported colloquy jury. with the quoted transcript majority opinion. The defense present counsel was when the above statement was made. Defense counsel raised no questions concerning point no argument on this on a ground new (d) motion, § no motion under Code Ann. 6-805 or (f) contending transcript supplemented should be as to this matter. The cases majority cited are inapposite because in those cases objections were raised the trial court.
The trial judge should have remained outside the jury room at all so, times. Had he done of this questions sort could not I have arisen. lightly do not toss aside a claim that received from an any source unauthorized communication. See also Berryhill (1976), and dissent thereto. Nonetheless, I find record that no reversible error has been shown. See ABA generally, Standards, § Function of the Trial 5.2 Judge,
"A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict and complain later" Favors v.