State v. Biddle

Uрon review, court. Revenue trial totally lacking found the record

the Court the trial support

in evidence to court’s con-

clusion, having no evidence been offered presented.

pertinent judg- issue reversed and the cause

ment was remanded as to what suggestions evidentiary should covered on a

matters trial.

This is in a different posture. requested

Respondent hearing before was given the opportunity

Director

support exemption. Except its claim for officer, findings hearing

for the does know

Court what evidence was

actually heard on the issue. In the absence transcript, parties stipulated

aof findings hearing officer should judicial the basis

provide review. Re findings of such in this led to

view Court respondent

the conclusion that had not met establishing

its burden of its claim for ex circumstances,

emption. In these a further

hearing on the issue is not order. rehearing

Motion for overruled. Missouri, Respondent,

STATE BIDDLE, Appellant.

Thomas Woodrow

No. 61784. Missouri,

Supreme Court

En Banc.

May

Rehearing Denied June Boonville, Reesman, appellant.

Dale Ashcroft, Gen., Mor- Atty. except John John M. that one was over six feet tall. She III, ris, Gen., man; Atty. City, for Asst. Jefferson later tall she never was identified the respondent. men, identify able to the shorter two identify type clothing unable to

SEILER, Judge. wearing, he was and did know whether Biddle, white charged Thomas as a he was or black. Woodrow offender, jury by second was convicted of Highway Patrol was The Missouri State 560.120, robbery, degree, § first RSMo by Trooper Carlyle arrived alerted radio. punishment the fixed his im- and court at Wagon p. the at about 9:08 m. at Wheel twenty-five The prisonment years. Deputy He talked with Mrs. Starke and appeals court of reversed determina- on a patrol and the roads McIntyre proceeded tion that the evidence was insufficient Hurt Trooper in search of the two robbers. sustain conviction. One member 10:00 arrived area between 9:30 and court, dissent, purposes in certified for the m., proceeded highways p. and to search the of transfer court the to this that he deemed received a Trоoper back Hurt and roads. majority opinion Mis- prior in conflict with report over radio at 2:30 a. m. that C.B. regarding admissibility case the of souri law entering man was seen a ditch next to U.S. suf- polygraph examination results and the liquor four to five east of the store. miles ficiency of convic- the evidence sustain a eight or feet from The ditch was some ten 83.01, tion, V, 10; Rule Mo.Const. art. § visible to highway and defendant was opinion.1 matters which we address in our trooper. trooper The ordered defend- p. Septem- At 8:30 approximately m. arrested, ditch, from the then hand- ant wearing nylon ber men stock- two cuffed, him, thereby and discov- and frisked Wagon Liquor masks Wheel entered pocket of ered that had a full one mile east of Store located about half by change. area was described Otterville, Missouri, on Route 50 in U.S. hiding trooper open with better fairly two, Cooper County. The taller of the arm- wearing a places nearby. Defendant was shotgun, with a demanded ed sawed-off jeans. and blue De- short sleeve T-shirt Starke, store, Betty of owner hand appeared drinking, to have been fendant money. Money all taken over her although troopers did not believe that register, in robbers from the cash a closet he They thought that he was intoxicated. purse back of the store and the victim’s feigning was drunkenness. $629.00,including sixty seventy totalled Cooper Defendant taken was Among in taken dollars coins. the coins rearrested, although County jail later bearing were two half-dollars a bicentennial evening September of was released on the year which Mrs. commemoration Starke for want as one of identification the robbers daughter. saved for her Just as release, in Upon robbers. $22.50 her hus- leaving, were Mrs. Starke heard returned, at him was coins seized from entering through the door. She band back among the which time the sheriff observed ran to the door to warn her husband. back bearing the bicenten- coins two half-dollars in not how or Consequently, she did see year nial commemoration. what direction the two men fled. trial, father testified At the defendant’s Deputy Mrs. McIn- Starke called Sheriff stopped by his father’s When that defendant had tyre p. in at about 9:00 m. Otterville Columbia, Missouri, early on the later, victim in he arrived few minutes home 9th; that defendant give description evening September the two men could no posture appeals, dissenting opinion these from the court of 1. While asserts that this in this being sponte which divided that court has about the the issues court admissibility raised sua the issue ad- provoked the These were transfer. issues evidence even where supplemental brief state in its entered into a dressed have pro argued con also issue of any purpose, the comes to us counsel before us. evidence for purposes transfer to this court that approximately counted out and borrowed of coins. was in conflict with change appeals opinion from a can full court of $15.00 (Mo.1968), Fields, Two witnesses testified that defendant State v. nearby Hitching Post poly- Tavern use on the that the limitation Otterville, Rocheport, fifty some miles from “that graph impinged upon rule and left the evening September on the pre- weight of the evidence is sole 8:45 9:00 approximately tavern alone at rogative The dissent also jury.” testify. p. m. Defendant did not decision was in asserted that the court’s error holding “in its that the circumstantial Morris, defendant, According to Sheriff state fails to presented by night custody, that on while related make appellant’s a submissible case of 9th, poker in a September he had been guilt.” game and became the Otterville area He did know who drove intoxicated. I any game per- him to the or the names of person game. in unknown sons The polygraph results The of examina poker game to the had left who drove him crim tions are inadmissible as evidence in a game without him and defendant had sup they inal lack scientific trial because walking Rocheport started towards or Co- port Wein reliability. for their State v. lumbia when he was arrested. dorf, 806, (Mo.1962); 361 811 S.W.2d Cole, 181, 43, v. Mo. 51 354 188 S.W.2d awaiting trial, While defendant sub- (1945).2 jurisdictions least 40 fol At other (also polygraph mitted to a known a “lie general low the rule that the results of detector”) per stipu- examination a written polygraph examination are inadmissible lation entered into the state. with Pursu- guilt or innocence of evidence to show the to a ant clause contained in the written People Monigan, Ill. the accused. 72 stipulation permitted party either to 562, App.3d 28 390 N.E.2d Ill.Dec. offer the of the polygraph results examina- (1979). evi 565 Likewise inadmissible in tion in the poly- state called professed or dence are an accused’s offer graph testimony, whose examiner sub- willingness stance, polygraph to submit to a exami in his opinion was that defendant’s nation, Bibee, 496 S.W.2d 316 response questions relating participa- to to prosecuto- or testimony in, of, (Mo.App.1973), knowledge receipt tion of rial to the accused robbery comment effect proceeds question “indi- ex unwilling undergo to The deception”. cated defendant filed Faught, 546 amination. State v. S.W.2d suppress a motion to the results of the (Mo.App.1977). polygraph examination renewed his ob- jection during trial thereto on the

ground A that the state breached terms of stipulation. stipulation A en- further Fields, supra, In State division tered and the de- into between state question of this court considered the of provided fendant evidence that defendant re admissibility of examination County escaped jail Moniteau issue sults in terms of the constitutional awaiting ap- while trial was later self-incrimination, when regarding prior prehended the state of California. objections to trial both have waived admissibility. explicitly re their The court appeal, court en banc appeals On the examination fused to decide issue of “testimony held that as to the results of admissibility lack it relates results polygraph examinations does not constitute accuracy: acceptance of their scientific guilt substantive evidence of an accused’s above, upon “We now to the admissi briefly decline rule .” As noted one of standpoint bility from the judges certified for the of this evidence dissented and Stout, samples, ruling blood see State v. 2. For a lack of scientific similar on the analysis (Mo.1972). reliability of neutron activation results, acceptance nonaccep- the scientific nation othеrwise inadmissible accuracy.” support tance of such tests or their lack of scientific for their reliabili opinion ty, objec at The then noted waived S.W.2d where has rights may by stipulation. that constitutional be intelli- admissibility tions voluntarily gently Mick, (Mo.App. waived a defend- State v. S.W.2d stated, ant and concluded the defendant 1976), appeals citing expressly through that case had waived his Fields, may be, the “However anomalous it stipulation any objection constitutional stipulation, objections parties by may waive admissibility of the evidence. In the admission of examinations point, conclusion of its discussion of this results, and in that sense imbue and their Fields court in noted: reliability probative value.” them Scott, “We hold In State v. that none defendant’s consti- S.W.2d rights infring- privileges (Mo.App.1978), ap tutional the court of S.W.2d circumstances, ed, stated, Fields, under the ad- peals citing these that “the also weight mission of this evidence. The examination ad ” solely jury the evidence was for the . would have ministered the defendant they

been as evidence because inadmissible support lacked scientific for their at 515. court did elabo- However, [citations omitted.] by “weight what rate on it meant into be written entered evidence,” nor nec- was such an elaboration parties gave polygraph the exam tween the expressly in a limited to essary decision legal to defendant a ination administered constitutional consideration of the narrow infusing con thereby the reliability, aura of presented where the use of the issue and probative val results with clusive obtained polygraph was not essential to the evidence ue.” 570 S.W.2d at 814-15. against the making of a submissible ease parties did not hold that defendant.3 Fields bar, we deciding have the case at stipulation make inadmissible evi- may by successors, and reexamined Fields its parties or that dence somehow admissible appellate we of have studied the decisions a may by stipulation bind or circumscribe regard of in the ad- courts sister states questions of court in its determination of missibility polygraph of examination results law.4 parties. To- upon prior stipulation a the left day, necessity, we address issues Despite the narrow issue decided in of subsequently in mis- Fields, opinion read Fields by has been the undecided Mick, supra, and State v. appellate permit read in State v. courts of this state Scott, supra.5 polygraph admission in evidence of exami- stipulations recognize clearly the law tions The state made a submissible polygraph 73 in are invalid and ineffective.” Am.Jur.2d without examination results (1974). Stipulatiоns The which § evidence Fields. other evidence 5 Fields, supported the conviction included test; following: of a nitrate trained admissibility evi examination of 5. Our defendant; victim bloodhounds tracked polygraph of results where dence examination robber; by hat and veil worn identified by parties prior stipulation have waived by jacket worn defendant were simi- shoes admissibility objections to is consistent their by those worn robber and described lar to general agreement rule that “an victim; money taken in the rob- the amount parties stipulation a a counsel on their money bery was the same amount of found appellate binding law not on an matter of is coat; pocket defendant’s defend- point legal so as exclude that apprehended promptly in the immedi- ant was scope of review of the case.” Am.Jur.2d vicinity robbery. ate (1962). Appeal also Midel See § Error Enterprises, Highway State la Inc. v. Missouri general stipulations is that of liti- rule Commission, 298, (Mo.App. gants or circum- cannot be invoked to bind 601, 1978); City, 458 S.W.2d Stine v. Kansas questions court in its determination of scribe a Stipulations (Mo.App. 1974); 73 Am.Jur.2d City, Stine v. Kansas of law. (1974). § 5 “[Virtually jurisdic- (Mo.App.1970); all indepen- test “(1) A B fact, merely but bears proof dent taken jurisdictions have Courts in other credibility of the defendant. respect to generаl approaches with three “(2) The admission admissibility of results of jury that on the impact has such an test upon prior stipulation a examinations of the trial seeking truth function jurisdic- and the state. Several destroyed. will be place virtually no limitation on tions should not “(3) Unreliable testimony regard- admissibility and use of conviction or major part play a per ing polygraph agreed examinations a charged with acquittal person of a have stipulation.6 jurisdictions Other fol- crime. Supreme opinion lowed the of the Arizona “(4) make unrelia- stipulation A cannot Valdez, 91 Ariz. Court in ble evidence reliable. (1962), permitted the admis- P.2d which unrelia- “(5) stipulation A that makes results on examination sion of contrary admissible ble evidence sub- stipulation the written public policy. discretion, judge’s cross-ex- ject to the trial evi- “(6) A that unreliable jury instruc- rights required amination stipulation of really is reliable is dence jurisdictions refuse to And other tions.7 law and therefore invalid. testimony regarding polygraph re- admit “(7) would be inconsistent for It notwithstanding stipulations, primari- sults polygraph tests court to refuse to admit polygraph’s lack of ly on the basis that they are unreliable into evidence because keeps it from ad- scientific them into evidence and then admit be altered mission in evidence cannot stipulation.” parties.8 We are con- stipulation of at 563. 390 N.E.2d is the cor- approach vinced that this third Frazier, su- Monigan and Both People rect one for the reasons stated in the cases fol- pra, reject logic used Monigan, Ill.App.3d 28 Ill.Dec. Valdez, approach in v. lowing the ‍‌‌​​​​‌​‌‌​‌‌​​‌​​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‍State Frazier, (1979),and v. 390 N.E.2d 562 State poly- of permits the admission supra, which (W.Va.1979) (quoted exten- 252 39 S.E.2d stipulation upon graph examination Monigan opinion). sively in the In qualified discretion. judge’s at the trial seven rea- Monigan, Frazier, Virginia Supreme the court listed Court the West polygraph holding for the results of reasoned: sons prior spite arising of a problems

examinations inadmissible “There are several the- waiving objec- concept. Its central parties from the Valdez stipulation stipula- written admissibility is the sis of admissibility: tions to their Stanislawski, 547, (1972); 62 Wis.2d Trujillo, Cal.App.3d v. People and State 67 136 See v. State, Chambers, 730, (1974); (1977); v. 565 Cullin Cal.Rptr. 240 216 N.W.2d 8 State v. 672 76, (1977); (Wyo.1977). 324 State v. Gallo 445 239 S.E.2d P.2d Ga. 1969); (Iowa way, State v. 89 167 N.W.2d (1976); 758, Lassley, 383 545 P.2d State, (Alaska 218 Kan. 476 P.2d 474 Pulakis v. 8. See (N.D.1978), Olmstead, 880 87, 261 N.W.2d State v. Ill.App.3d 1970); People Monigan, 28 v. 72 918, 2264, denied, 56 98 S.Ct. cert. 436 U.S. Conley 395, (1979); v. 562 Ill.Dec. 390 N.E.2d Bennett, (1978); 17 State v. L.Ed.2d 759 Commonwealth, (Ky.1964); S.W.2d 865 382 197, (1974). Or.App. 521 P.2d 31 Corbin, (La.1973); Ako So.2d 234 State v. 285 676, State, Md.App. A.2d 1213 394 v. 40 nom State, (Del. A.2d 117 v. 378 7. See Williams 491, Liddell, Mich.App. (1978); People 63 v. (Ind. State, 1977); 913 373 N.E.2d Owens v. State, (1975); 365 Jordan v. 669 234 N.W.2d Allen, Mass. App.1978); Commonwealth v. McClean, (Miss.1978); 587 v. State So.2d 1198 Stаte, -, (1979); v. N.E.2d 553 Corbett 387 State, (Mont.1978); 541 P.2d Fulton v. 20 P.2d McDavitt, (Nev.1978); 62 State v. 584 P.2d 704 LaForrest, N.H. (Okl.Cr.1975); 106 State v. 871 Milano, 36, (1972); v. N.J. 297 A.2d 849 State, (1964); 159, 493 v. 429 Romero 207 A.2d 485, (1979); State v. 297 N.C. 256 S.E.2d (Tex.Cr.App.1973); and State (1978); 123, Souel, 372 N.E.2d 1318 53 Ohio 2d Frazier, (W.Va.1979). 252 S.E. 39 62, Ross, Wash.App. 497 P.2d 1343 State v. stip- (cited approval tion. Yet it is clear that written 252 S.E.2d at 45-46 ulation cannot make evidence ad- Monigan). would be inadmis- missible that otherwise vein, In a similar another criticized words, stipula- sible. In other a written missing approach the crucial Valdez of cer- agreeing- tion introduction whether, of a of law the issue as matter legal for its tain evidence is not the basis evidence is reliable: State, 476 admissibility. Pulakis v. P.2d unpersuasive “We find these cases (Alaska 1970) test (polygraph they suggest would venture to that are stipulation); Am.Jur.2d Evidence 13. § guilty putting of the cart before well- progeny “It is true that Valdez and it, known horse. As we see the crucial suggest testimony that the examiner’s law, whether, this issue as matter concerning upon test bears sufficiently reliable or type evidence is subject’s

the truthfulness of the testimo- Yet, ny, credibility. trustworthy. logically if It be ar- and therefore cannot for real basis its admissibili- any gued stipulation that enhances ty, there would be no need for writ- way significant the inherent stipulation, generally ten it is held since produced by a so-called scientific may any credibility witness’ See, g., process or art. e. Pulakis impeached. . . omit- [Citations Statе, (Alaska 1970). 476 P.2d ted.] “However, merely if test bore State, Md.App. Akonom v. 394 A.2d credibility, ordinarily it the issue would (1978). not unless the defendant be admissible stipu logic took the witness stand. Most cases that agree We with the stipulation, follow the Valdez and Valdez make admissible evidence lation cannot discuss, itself, do not much less differenti- held which would otherwise be inadmissible between, ate the test can be whether reliability. lack scientific for case-in-chief or introduced in the state’s only defend- impeachment for C ant. perceive “It is difficult to how the writ- Cole, decision, supra, In a poly- that the ten of the fact did held this court impeach graph test can be admitted to approval and therefore have wide scientific credibility the defendant can fur- examinations are the results of legal theory nish sound use Michigan Supreme Court inadmissible. The in the state’s case-in-chief. recently whether advances in reconsidered problem is en- An even more difficult technology polygraph have made polygraph attempt if to utilize these countered we sufficiently reliable for results examination when the defendant seeks ad- theories After an exhaus- into evidence. admission polygraph mit test taken un- a favorable ques- scholarly tive and discussion stipulation. der Valdez If we follow a ques- tion, “serious concluded that polygraph that the the Valdez rationale tions remain about independent proof test not fact is operators. We are also technique of its merely credibility, but bears de- validity of the device convinced ordinarily introduce his

fendant cannot People satisfactorily established.” has been extrajudicial exculpatory state- own 171, 352, Barbara, 255 N.W.2d 400 Mich. v. They generally thought be ments. are Akonom, supra, Mary- (1977). In 193 We have self-serving. too [Citations.] thing “If is one court observed land a which ‍‌‌​​​​‌​‌‌​‌‌​​‌​​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‍discusses not encountered great of literature on mass clear from Obviously the defendant point. scientific testing, it polygraph if gains little a Valdez from divided,’ ‘significantly community is still poly- [ci- he a favorable cannot introduce concerning opinion its tations graph test.” omitted]

189 practices Were testing. private A.2d at validity technique.” 394 might up, defendants spring some they passed an ex- “shop around” until stated Virginia Supreme The West Court prior un- divulging amination without Frazier, per- v. “We are supra, hand, other tests. successful On despite suaded that assertions un- indigent would be test, depends scientific nature of the much to “take without able an examination analysis subjective on the test results knowl- government’s financing and know test operator. We of no scientific Wilson, edge.” supra.’ conventionally by the courts admitted Bohner, 651, degree such a of inter- 246 N.W. high which carries v. 210 Wis. pretative Note, subjectivity.” 314, at 48. (1933); 252 S.E.2d A.L.R. 611 Problems 86 note, Monigan On a related decision Accepted’ Remaining ‘Generally for the with expounded problems numerous other 375, (1973).) Polygraph, 53 B.U.L.Rev. 377 polygraphic evidence: taken no Supreme The Illinois Court has many

“There are connected problems already tice of most of concerns these 302, our polygraph tests. In line with (People [, Ill.2d 189 v. Zazzetta 27 in test concern about the role examiner’s 260]), as States N.E.2d has the United Inbau, recog ing, we note that Fred taking strong Department Justice field, expert in this that 80% nized states against polygraph stand use of polygraph unquali all are examiners (See, Abbell, Polygraph trial. Evi (‘The Against Polygraph’, fied. Case Admissibility The Case Against dence: (1965).) 857 the exam 51 A.B.A.J. While Trials, 15 Am.Crim.L. Federal Criminal cross-examination, may subject iner (1977).) . . We are also Rev. 29 . polygraph susceptible itself is not subjective- by the troubled almost total (State testing. in-court examination and surrounding ness the use of 622, Kan. Lowry, v. 163 185 P.2d 147 interpretation and the of the results: (1947).) also that too We are concerned psychological factors results arise may weigh many jurors inordinately interpretatiоn totally depend- and their (State results as conclusive gen- analysis. See ent on examiner’s Cole, 181, 43, 354 Mo. Inbau, erally, Lie Detection and Criminal 541; State, Romero S.W.2d S.W.2d Investigation. 206, (Tex.Cr.App.); Kaplan, ‘Lie De subjective This fac- type . . Analysis An Place in the tector: of Its there are toring supports our belief that Evidence,’ 381, L.Rev. Wayne Law inequities in the use many so inherent (1964)). we in too And also fear that it, point at this to make cases, limiting will not many instruction time, unreliable, if not absent grossly jury. impact the desired on the have ” . any probative value. S., (Shepard v. U. 290 U.S. then noted 390 N.E.2d at 569. The court 196; 22, [25,] People v. 78 L.Ed. S.Ct. examinations, de- that results 652; Deal, Na Ill. N.E. spite problems, all of their inherent are Register Kay, Cash Co. tional interpreted indepen- frequently by juries (Mo.App.).) of such The use proof of what the most critical dent are jury as displace seem to also facts of the case. The court concluded guilt or adjudicator of of fact finder poly- of the the of admission the results Alexander, F.2d (U. 526 innocence. S. reversible error. graph examination was 1975).) case of recent (8th In the 161 Cir. N.E.2d at 571. 390 State, 394 Md.App. Akonom 676] [40 given the court A.2d said: for a range The estimated of error examination, assuming that likely polygraph other by

‘We are also troubled has been properly qualified,9 institutionalizing effects of examiner above, Against Polygraph,” expert 51 A.B.A.J. 9. “The Case As noted one believes 80% unqualified. of all examiners are 857. 190 5%, 10%, 25%, repeated process 30%

variously stated as examiner a second Radek, Admissibility of time then a time ma- by experts. L. The third. Each chine was deceptive indicated the defendant in Trials: A Polygraph Results Criminal question 289, when he “Yes” to the answered Quo, Loy.U.L.J. for the Case Status living about in While the United States. may (1972).10 polygraph A examination explanation an examiner offered as to results, regardless be error in in its why be discrepancy expected could because qualifications, examiner’s respect very question to the first asked experi- may emotional tension which examinee, explanation an no was offered truth, subject’s by telling enced one why and none occurs as to the machine or mental abnormali- unique physiological indicating would truthful continue answers ties, muscu- subject’s unobserved question being to such an de- innocuous may provide lar mislead- movements which ceptive. knowing In the our absence of pressure trac- in the blood indications beyond question what the truthful answer Richardson, Evi- ings. Scientific J. Modern (as question living had to be about (2d 1974). dence 10.2 ed. § States), way the United we have no of bar, first example, For knowing many how erroneous indications question by the examiner asked defendant registered by were the machine other States?”, was, you “Do live the United may where answers made he answered, “Yes”, an ad- which defendant truth, telling likewise have but it been machine, The mittedly truthful answer. grievous subject is clear the machine is however, was the “Yes” answer indicated error. explained this deceptive. The examiner problem “the another arises in that Still in- discrepancy the machine between what who polygraph will not detect the witness dicated and what the truth as follows: fact, it makes of honest misstatements “Q. you saying, you’re saying Are be- may who not detect hardened individual they cause when they’re nervous recognizes responsibility no to conform to (sic). disceptive? first one is moral of the communi- codes standards give me Invariably “A. the first one will Evidence, at ty.” Modern 10.3. Scientific § response and it is tre- sometimes margin view the error polygraph’s mendous.” can myriad and the of factors which lead results,11 all unaccept- The examinations there are two erroneous going possibilities we April After which could occur were made able once, permit re- through questions admission series Forkosch, large margin M. The Lie Detector and Mechani- Given of errоr stated experts Jurisprudence, (1975). disagreements among cal some and the 28 Okla.L.Rev. certainty experts reliability, stipu- deceptive polygraph’s Highleyman, as to S. The is, Detector,” admissibility Hastings (1959). lation as to the effect, of its results “Lie L.J. agreement rely upon Levitt, an rather chance E. Detector,” Scientific Evaluation of the “Lie upon competent (1955). an than well as L.Rev. 440 Iowa regarding opinion beyond agreement Note, Truth?, scientific Polygraphy: Short Circuit competence party of either to understand (1977). U.Fla.L.Rev. 286 Note, or evaluate. “Generally Remaining Problems for the Accepted” Polygraph, 53 B.U.L.Rev. 375 11. Various have commentaries enunciated (1973). problems plague polygraphic multitude of Radek, Admissibility Polygraph L. Re- The following evidence. The authorities discuss A for the Sta- sults in Criminal Trials: Case many persistent shortcomings detail Loy.U.L.Rev. (1972). Quo, tus polygraphic evidence: Richardson, J. Modern Evidence Scientific Abbell, Polygraph Evidence: The M. Case (2d 1974). § 10.2 ed. against Admissibility Criminal Tri- in Federal Skolnick, Theory and Scientific J. Scientific als, (1977). 15 Am.Crim.L.Rev. 29 Lie-Detection, Analysis An Evidence: Burkey, Against Polygraph, L. Case (1961). Yale L.J. 694 (1965). A.B.A.J. First, weighing after guilty party into evidence. a derived facts and consider- suits witnesses, which has recognizes credibility no tell the the responsibility who to jury tradition.” the hallmark might “beat and offer been truth machine” Alexander, 526 F.2d supra, v. United States proof the erroneous of innocence. Moreover, second, long it been the law at has might And an sub- party innocent “opinion ex- testimony Missouri that polygraph mit to a with the examination witnesses ‘should admitted pert never be proving obviating hope of his innocence and jurors it is clear that the themselves trial, unless rigors only of a find that erro- to capable, experience are not for want of neous results heart of the constitute the knowledge subject, correct to draw against per- state’s case him. An innocent ” proved.’ conclusions from the facts accuracy son convinced of the device’s Co., Sampson v. Missouri Pacific R. anticipate would not to that his submission (Mo. 1978); Benjamin banc polygraph might produce examination Co., Metropolitan Ry. Mo. v. St. involuntary an and admission of erroneous (1896). exclusion of the S.W. guilt. interpretation polygraph and results of reasons, all For above stated princi- would keeping tests be unrelia polygraph examination results are is jury for it cannot be ple, said may That a have ble evidence. weigh to incapable performing duty stipulated admissibility, to their whether facts, credibility of wit- consider the poly innоcence or prove his to deceive the nesses, innocence. guilt and determine graph examiner into him with providing party doing anything not be a We will evidence, rea exculpatory or for whatever displace jury in its constitutional role son, nothing problem does correct the determining whether is or not the accused unreliability of this evidence. always jury, guilty. We have relied on back- up Evidence of results raises made of individuals with diverse viewpoints knowledge, by use very grounds, another concern which cuts to the wisdom of its common sense and collective jury system. heart of the Unlike other telling who is judgment, determine may scientific which be used to is what the facts are. There the truth and allegedly identify object an individual or machine or place jury system in our for a no perpetration criminal involved in of a lying and expert jury to tell the who is an act, polygraph purports to settle evidence who is not. in a jury issue the sole reserved for Alexander, criminal case. United States reaffirm our in State v. decision We 1975). (8th 168-69 “To 526 F.2d Cir. Cole, poly supra, and continue to hold that results are the extent wide scien graph examination results lack unimpeachable or conclusive accepted are approval tific of their jurors, despite сautionary instructions courts of inadmissible as evidence in the jurors’ re judge, traditional the trial statement this state. We reaffirm the collectively ascertain sponsibility Fields, supra, limiting that decision adjudge guilt pre or innocence facts in regarding voluntary and to the issue Ibid, can be little empted.” at “There right waiver of a telligent constitutional jury standpoint, question that from hold erro against self-incrimination and we expert by the Fields case interpreted any interpretation test as neous other proof often are holds that independent of what is, unreliability for can case, the wise inadmissible facts in most critical Frazier, through made admissible guilt of defendant.” State parties. admission supra, 252 S.E.2d 47. The permits expert opinion

such evidence II jury’s function usurpation ground common The second cited deprives the defendant “of the appeals peers, dissenting judge of court of judgment of his sense and collective 192 half-dollars; (4)

certifying escaped case for transfer defendant court, awaiting pertains sufficiency to the while trial. As not- custody from earlier, a convic support robbery only circumstantial evidence ed victim could brief, robbery. degree In tion first not identify the taller robber. could She present robber; “the case is the state concedes that identify defendant as the shorter evidence.” upon founded circumstantial shorter rob- she was unable to describe the sufficiency The standard of review as characteristics, race. clothing, ber’s entirely in case founded evidence governed by contends that defend upon circumstantial evidence is The state Franco, (Mo. lying v. 544 533 banc in ditch having State S.W.2d ant’s been found 957, 1976), 97 denied 431 U.S. highway cert. S.Ct. feet was eight to ten from 2682, (1977): 53 L.Ed.2d of concealment un admissible as evidence “ 360, Cochran, .2d der 366 S.W ‘the facts and circumstances must be denied, 981, (Mo.1963), with each other and with the cert. U.S.

consistent guilt, they (1964). In hypothesis of defendant’s 11 L.Ed.2d 426 Coch S.Ct. ran, with his innocence permitted testimony must inconsistent every hypothesis and exclude reasonable arresting the two officers that defend . of his innocence.’ . . in a closet to hiding [Citations ant was found clothes . the circum- . omitted] attempt [But] to evade arrest. show defendant’s absolutely stances need not be conclusive bar, in the case at The state’s evidence they guilt, and need not demonstrate however, defendant was seen indicates that ”. impossibility of innocence arresting even before he officer However, alighted patrol the evi- from car. other if 544 S.W.2d at better hid preclude hy- trooper a reasonable testified that there were dence does not innocence, nearby. sufficient to pothesis ing places it Both officers testified Hodges, 575 attempt to resist support conviction. State that defendant made no has long short, It (Mo.App.1978). facts did not demon arrest. “ in this state that been law to hide or ‘[m]ere strate an effort the defendant strong, supply will not suspicion, however open in the lying evade arrest his liberty when life or place of evidence hiding places better ditch in an area with ” Bunton, 453 S.W.2d stake.’ nearby was not evidence of concealment Jones, (Mo.1970),citing State v. under Cochran. (1891). Mo. S.W. exag- The state contends prove evidence to de- The circumstantial gerated of the alco- the amount and effect ‍‌‌​​​​‌​‌‌​‌‌​​‌​​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‍robbery, after complicity fendant’s evening he and was hol had drunk that ex- excluding the results of Trooper Hurt testi- feigning drunkenness. amination, (1) six hours after is as follows: exag- that he believed that defendant fied defendant, committed, who crime was drinking by gerated pre- his the effect of drinking, lying in a had been was found officers tes- tending to be intoxicated. The five miles approximately roadside ditch tified, however, had attempt that no been open area robbery scene an whether, fact, defend- to determine madе hiding nearby; (2) the places with better have been was intoxicated. No cases ant defendant believed officer who arrested none, state, found by the and we have cited the amount exaggerated that defendant intoxica- feigning hold that evidence of he drunk that effect the alcohol established, may supply tion, sufficiently if drunkenness; (3) feigning evening and was guilt as substan- inference of or be used an robbery taken $629.00 included support a conviction. tive evidence coins, sixty seventy includ- dollars in Franco, above, the facts As set out under bearing a bicentennial ing two half-dollars constituting state’s and circumstances defendant had year commemoration and $22.50, “must be inconsist- in circumstantial when all possession his arrested every innocence and exclude ent coins, two bicentennial among which were States, John president of the United late hypothesis of his innocence.” reasonable Kennedy, been coined.12 Fitzgerald have lying found ditch That defendant was Kennedy half- the well-known These are effects of may exaggerated have law, the pursuant to federal dollars. Also of this standard. drinking his falls far short first made bicentennial commemoration fact that that the argues The state minted for issuance appearance on coins had two bicenten when arrested defendant 1,1977.13 4, January 1975 and July between half- nial and two bicentennial half-dollars therefore, question the coins in Necessarily, robbery evi in the is dollars were taken bearing the bi- Kennedy were half-dollars his inno inconsistent with potentially dence there were centennial commemoration and Hampton, cence. general circula- millions of these coins 1955), (Mo. the court addressed a banc state that point by tion.14 The stressed involved a question. similar There issue develops coins the coins were bicentennial role dimes: were that such coins no more than the fact view, Kennedy half-dollars among the millions of “In our while the fact that a bearing the commemoration bicentennial dimes, wrapped roll of five-dollar at least two months general circulation for roll, paper missing same colored 9, robbery. prior September to the possession day was the same found in the coins, circulation of these the massive Given was a circumstance admissi- of defendant possession defend- it cannot be said that evidence; nevertheless, inasmuch ble in would Kennedy of two such half-dollars ant sufficiently as there was no evidence the conclusion that logically lead to identifying the roll of dimes defendant еqually It can be coins had been stolen. tavern, had as that taken from mere coincidence. Under explained well evi- circumstance was not substantial then, no as there was Hampton, inasmuch hy- dence with a reasonable inconsistent identifying the two sufficiently pothesis of defendant’s innocence.” had as those taken coins defendant bar, In the there 275 S.W.2d at 358. store, was not this circumstance liquor the two coins identifying was no evidence with a evidence inconsistent substantial as those taken from the victim. inno- hypothesis of defendant’s reasonable regulated by coinage money witnesses testi- cence. All that the state’s I, Congress. yet U.S.Const. art. Since be true and § fied to about the coins could law, 1963, man in the pursuant only to federal half-dol- be the second defendant not holdup. of the bearing lars on one side the likeness coinage; judicial date of T776-1976’ in lieu of the

12. This court takes notice of acts dollar, half-dollar, 662, quarter-dollar Rositzky Rositzky, Congress, Mo. and all 591, (1931), as the minted thereafter until such time even where coins 46 S.W.2d Treasury may Secretary determine them into evidence. of the have not introduced 949, Rosner, a date emblematic of the Bicenten- Twiehaus v. 362 Mo. shall bear 107, judicial coinage.” (1952). Accordingly, the date of we take nial in addition to 30, 1963, of December Pub.L. notice of the Act “[¿judicial general 88-256, 843, to the rule that provides: 14. Pursuant which 77 Stat. No. regard congressional enactments notice in piece coinage 50-cent “In of the of the lieu existence, wording, and to their limited dollar, shall Franklin half there known as the interpretation, con extends to all matters but piece which shall be coined a silver 50-cent therewith,” 32§ 29 Am.Jur.2d Evidence nected of the late on one side the likeness bear Rosner, (court supra, (1967); see Twiehaus v. States, Fitzger- United John President of the federal Hous motion took notice of on its own appro- Kennedy, side an ald and on the other regulations Act of 1947 and Rent prescribed priate design the Secre- to be act), promulgated notice of under the we take Treasury.” tary of the Treasury, Department Bureau judicial Coinage Act of October Report: notice of the 13. We take Year Mint “Annual Calendar 18, 1973, 93-127, According 87 Stat. § Pub.L. No. re to the 1975-1976.” Statement provides: 378,514,000 Kennedy port, half-dollars some half-dollar, bearing dollar, quarter the bicentennial commemoration 2 All “Sec. July general July circulation between issued for between coins minted for issuance dollar 1, 1977, 4, 1975, January 1975 and December shall bear Likewise, put appeals opinion As banc fact рossession efficacy at the evidentiary in coins herein: “The all of $22.50 pieces time of his arrest is not substantial evidence fragmented these circum- bits hypothesis inconsistent with reasonable inconclu- stantial of their because The state’s evidence was his innocence. nex- perceptible sive nature and lack of robbery, taken in the over us, $629.00 the state into extrapolated by cannot be seventy sixty bills some to $550 support guilty evidence to substantive arrested, dollars coins. When defendant collectively, they Singularly verdict.” possession. bills in his state’s had no The with his innocence” are not “inconsistent proved only pos evidence that defendant every hy- reasonable and do not “exclude prove sessed in coins and did not that $22.50 innocence”, Franco, his pothesis of property place coins were nor stolen supra. a of evidence does Such modicum This robbery. defendant at the scene of the guilt proof not defendant’s be- support of Fields, supra, is not a case like State yond a reasonable doubt or overcome was found soon after where defendant clothing of the ac- presumption innocence of the vicinity within the immediate cused. money robbery holding the same amount of robbery. that which was taken as Ill Consequently, that defendant had $22.50 Having re- decided that of arrest is not sub coins at time his into evi- erroneously sults were admitted reason stantial inconsistent with a evidence remaining evidence was dence and that the his There are hypothesis able innocence. conviction, a we support insufficient to many ways by person could inno a must to remand the case or decide whether pocket change. have cently a full discharge to In State defendant. circum The state also submitted as Wood, (Mo.1980), this court 596 S.W.2d that, while await stantial evidence fact is question whether retrial addressed trial, We escaped jail. from ing permissible after reversal of a conviction held that evidence of a defendant’s have admitted evi- grounds erroneously on the guilt his escape bears on the issue of dence, is to when the evidence insufficient Holt, trial, charge on State v. the erroneous- support a conviction without is, (Mo.1971), escape flight but that The court found that ly admitted evidence. itself, support convic to insufficient by the double proscribed retrial was not Castaldi, tion. State v. in Burks v. clause as enunciated jeopardy (Mo.1965). escape jail, Defendant’s States, United 437 U.S. S.Ct. then, his hypothesis with the is consistent (1978), question ex- as the wаs L.Ed.2d 1 support guilt is itself insufficient to but Court in pressly open by Supreme left evi provide to substantial conviction or 19,98 Massey, 437 U.S. S.Ct. Greene v. every hypothe reasonable dence exclude (1978), concurrently decided 57 L.Ed.2d sis of his innocence. we with Burks. Woods held: erroneously ad- out, pointed none “When trial As we have reversal, resulting in mits evidence stand pieces of circumstantial case, not be the instant the State should alone, support a convic is sufficient though when precluded is from retrial even state We not unmindful tion. are may be is there viewed such evidence discounted the circumstances entitled have prosecu- insufficiency. The Taking evidentiary piecemeal. a whole and not whole, rely is entitled proving tion in proved as a and circumstances facts proceed upon rulings when of the court however, best that can said If evidence offered accordingly. they is a sus collectively that raise viewed challenge and however, after This, not the State received picion guilt. does guilt legally sufficient to establish plac evidence avert the void of substantive accused, obligated the State is crime. ing defendant at scene go posture by appel- further and adduce additional evi- of this case is set 1) be, example, points for lant’s five of error: whether it dence would otherwise, permit testimony that defend- Were it error to cumulative. possessed ant two bicentennial half-dollars State, secure, would have to be to assume when arrested after it was shown two ruling by the every trial court on the 2) robbery; such coins were taken in the to be erroneous and marshall have been de- whether a mistrial should every and offer bit of relevant and com- following testimony the sheriff’s clared petent practical evidence. The conse- were scarce in the bicentennial half-dollars quences adversely of this would affect area; 3) whether the examiner’s justice, the administration of if for no stipula- questions violated the terms of the reason, by other the time which would be whether, therefore, testimony tion and required preparation ev- and trial of ” excluded; 4) have been whether should ery . case. support there an instruc- was evidence bar, 596 S.W.2d 394. In the case at responsibility tion on defendant’s for the prosecution upon relied the several decisions 5) robbery; and whether there was suffi- the appeals of court of which misread the cient the evidence to sustain conviction. case, Fields in discussed detail above. It way the appellant no has contended that state, may be that upon in reliance should if polygraph results be excluded cases, these withheld additional evidence stipulation. pursuant obtained to a valid cause, because it was cumulative. The The certification of the case to this Court therefore, is remanded for new trial. If the Pritchard, J., in the dissent of viewed the state produce cannot additional majority opinion appeals in the court of the case should be dismissed. be in conflict with in three Missouri law Reversed and remanded. first, respects: that it the circum misstated stantial set evidence rule out in State v. BARDGETT, J.,C. and DONNELLY and Franco, (Mo.banc 1976) 533 cert. S.W.2d WELLIVER, JJ., concur. denied, U.S. S.Ct. HIGGINS, J., separate dissents in dissent- 275; misapplied L.Ed.2d rule that ing opinion filed. finding support insufficient evidence to con viction; second, preservation “there is no of MORGAN, JJ., RENDLEN and dissent point appeal polygraph that the test separate dissenting and concur in opinion of excluded, should have been i.e. that it was HIGGINS, J. any purpose, inadmissible for HIGGINS, third, Judge, dissenting. majority opinion improperly that holding treated as dicta the v. I would affirm the conviction in this case. Fields, (Mo.1968), that S.W.2d majority The opinion prior overrules weight of results once admitted law in prelude this state to hold as a to its prerogative jury. is the sole evidentiary insufficiency, determination of foregoing issues statement of the that results of examinations can- presented appellant demonstrates that has not be admitted into evidence under preserved allegations of error or including upon stipulation circumstances of upon plain called this Court to consider as parties. question No of the admissibili- upon majority error that bases its ty upon stipulation of holding; appeals nor has the court of raised preserved by raised posture such issue. In its this case is best appellant, question and no such was briefed original appeal, determined the same as on argued before this Court. Whether presented Rule 83.09. On the issues so exception courts of Missouri should without conviction should be affirmed. exclude the results of examina- charge tion it was Appellant’s should await case in which such issue first is that properly presented. highly inflammatory prejudicial error permit testimony getaway damaged that had two in a car. Part of the possession money bicentennial of coins half-dollars in his taken consisted rolled argues green wrappers. when he Two and a half hours was arrested. He that the wrapper belonging green coins coin similar to could not be identified later dime wаs found in front victim and were therefore not connect- one those taken car robbery; testimony damaged ed to seat of the in which defendant money pos- about them should have been excluded as was arrested. The amount irrelevant, value, occupants totalled probative of no and clear- sessed car’s the cur- ly prejudicial as the denominations of $301.29 it raised inference to those taken rency corresponded the coins were taken at the time of the robbery. robbery that none exceeded Appellant would thus invoke the extent in view of the money person rule that ac- The court found that $20.00. seized from similarity currency involving money green wrapper, cused a crime theft element, denomination, close time cannot evidence absent be admitted into money damaged showing came the connection of the car and some seized robbers, occupants with the it was not irrel- from or had some connection with rob- See, Vernor, bery. occupants evant to show that the car S.W.2d possession approxi- money there col- their a sum of (Mo.App.1975), 314-315 and cases mately robbery. the same as taken lected. Ball, Hampton, In State (Mo.banc In State 339 S.W.2d 783 (Mo.banc defendant, 1955), 1960), rob- defendаnt was convicted of convicted armed larceny thirty where dollars in cash includ- bery, charged error to the admission tes- wrapped in timony he in cash on his a five dollar roll of dimes $258.02 had was person green paper after the was taken. Defendant when arrested three weeks in testimony day same and a roll of dimes robbery. The court held that arrested the person. The money green was found on his concerning paper was irrelevant stat- ing that: held: dimes, possession quantity wrapped a five-dollar roll of The mere roll, missing money paper is in no indication that same colored as itself person on the money charged day was was the same found possessor the taker taken, general in a circumstance admissible money because all defendant was in evidence. the same denomination and material alike, money hypothesis that the Id. at money taken is found is the same as the foregoing, showing in Tested extraordinary too forced and receiv- change defend- this that the found on able. two coins similar to ant included distinctive Id. robbery occurring in a six hours those taken continued, relevant, away five raised such earlier and four or miles

To be the court connect- “proof required fair inference that such coins testimоny precondition, A connection robbery. . the rec- ed to the sufficient .a fair inference from established, the coins posses- testimony regarding money in ord that the [defendant’s] in was committed from or was relevant and no error at the time of his arrest came sion Vernor, Compare, State admission. robbery with the had some connection supra, error to admit no such con- where it was .” The court found at the on defendant no found identifying where there was $83.50 nection robbery after a days two with the cash and three time his arrest item associated was taken absent evidence elapsed robbery between $800.00 weeks had money on defendant found associating the arrest. robbery. with the necessary connection was found in Britt, charge is that the court (Mo.1973). Appellant’s next State 504 S.W.2d 38 when Sheriff iri of a mistrial erred refusal and made their $300.00 Armed robbers took possession parties agree Morris testified that defendant’s “4. That the that Thomas of the two bicentennial half-dollars was un- given a polygraph Woodrow Biddle shall be because, “[t]hey recently usual been (lie detector) concerning knowledge test into introduced circulation and there were the aforesaid participation and/or acts of many not too of them around the Boonvillе robbery Payne F. by Sgt. G. Missouri objection area.” Defendant’s to this testi- Patrol, using equipment Highway State mony request was sustained. His mis- Highway of the Missouri Patrol locat- jury trial was denied and the was instructed Headquarters Troop ed at the F in Jef- disregard Appellant the comment. ar- Missouri, City, ferson said test gues that the court’s admonishment was not include, shall limited to the fol- but not be sufficient “to remove the taint from the lowing type question, to-wit: jurors.” minds of the QUESTIONS: I. KNOWLEDGE remedy Mistrial is a drastic be exer- you A. Do know who robbed the li- cised in those circumstances where the al- quor store in Otterville? leged prejudice can be removed in no other you Wagon B. Have ever been to the Parker, way. 515- Otterville, Liquor Wheel Mis- Store (Mo.1972). required Mistrial was not souri? jury case because it was clear to the you Have Wagon C. ever been to the purported that the was not Sheriff to have Liquor Ralph Dyke? Wheel Store circulation; expertise respecting coin QUESTIONS: II. DIRECT objectionable the substance of the state- The STIPULATION AND AGREEMENT recited sired to be conferring tions counsel of his own, voluntary, idea and he has not been act of first sire to of its results in evidence was violated in from their own experience. discretion. gard the comment failure to “used certain within the cumstances the court’s instruction to disre- mеnt was Appellant “2. That Thomas Woodrow Biddle after U “3. That Thomas ^[*] stipulation governing the examiner agreed upon ^[*] participation take ^[*] something suppress scope given polygraph degree robbery. with and provided: 794-795 (Mo.App.1977). next Compare, said attorney, examination questions of the charges was a in said “did not use the all evidence related to Woodrow in the herein receiving State v. stipulation.” Dale jurors proper the court erred in the test and use stipulation” asserting Reesman, test In these cir- test concern- included or Biddle’s de- likely exercise of Wells, was his alleged knew ques- legal that de- IV. GENERAL III. CONSPIRACY terville? A. Do Wheel A. concerning B. B. Have had on Wheel C. Are tion was D. Are tember Wheel Wagon A. Did C. When which was stolen in Otterville on September bery B. the Missouri Wagon Is Did Did any part about the your Liquor Liquor Liquor Wheel 10, 1975,along Highway you you forty you your person you withholding any you plan you you you Wagon Wheel first name live in the United States? receive assist in the armed rob- Store in Otterville? Store? Store Otterville? told Liquor QUESTIONS: robbery were arrested on robbery State years old? QUESTIONS: Liquor Store Ot- me the entire Wheel from the money Store? taken from the Highway Tommy? of the anyone of the Liquor informa- Wagon Wagon Wagon to rob money No. 50 Patrol truth 1975? Store Sep- you defendant, coerced, Thomas pressured “5. That induced or into such deci- Biddle, absоlutely by any hereby does agent sion officer or of the State of Woodrow every irrevocably Missouri. waive each and ob- provide inquiry areas of jection, including, but not limited to the ed to specifying the exact objections materiality, examiner without relevancy, as to questions to constitutionality, reliability, be used. competency, self-incrimination, evi- to the use in that included in The record demonstrates any stage prosecution dence at by the examiner questions actually used robbery charges the herein described questions ‍‌‌​​​​‌​‌‌​‌‌​​‌​​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‍types of the four of each test. expressed stipulation. The required parties agree Sgt. G. “6. That the an purpose parties was obtain testify, Payne permitted F. should be of defend- expert opinion as to the truth for either the of Missouri or the “concerning his responses questions ant’s defendant, any stage at of the herein alleged act of participation in the herein robbery proceedings described about the stipulation degree robbery.” The first Bid- polygraph test of Thomas Woodrow interpreted view of the result should be dle, test, including description accomplish. intended testing, equipment ques- Jones, used in (Mo.App.1975). de- given, tions answers asked and as conducted served The examination re- fendant Thomas Woodrow Biddle’s within the terms of the purpose and did so sponses Sgt. Payne’s agreement. con- stipulation as recorded and test, clusion drawn from the Appellant charges giving error Instruc- including Sgt. Payne whether issue (MAI-CR 2.10): tion No. believed defendant Thomas Woodrow knowingly persons who act guilty All are truthful or not.” Biddle’s answers were together purpose of with the common Appellant’s offense, who, assertion that some whether committing an not, out- questions by the examiner were knowingly asked and intention- present or by the scope questions permitted encourage in commit- ally side another aid provision it, stipulation by specific ting is refuted in further- and whatever one does asked, questions of each of ance of the offense is act include, .” “shall but not be limited to . them.

Thus, questions did not use not listed person or near the of a presence stipulation. violate the terms of time it was offense at the scene of an sufficient make committed is alone not support his assertion Appellant would therefor, although his responsible him did not use some of the that the examiner together with presence may be considered list- agreed questions by argument that all determining his all of the evidence agreement questions in were manda- ed guilt or innocenсe. tory and the examiner’s deviation agreement void. He them rendered the Appellant argues that “since there questions, at that of twelve such contends par- of affirmative no substantial evidence omitted, and substantial least five defendant, ticipation” by this instruction changes evidence; in three. were made by and be- supported not was evidence that defendant cause there was no parties been that the intent of the Had present at or near the scene questions, each of listed the test include the in- robbery, paragraph second expressed. In- easily have been such could in ac- omitted should have been struction stead, type parties stipulated Use, MAI- on with Note Notes cordance provided exam- questions to be asked CR 2.10. categories. Web- of the four ples for each Dictionary disposi- in the argument resolved Third New International This ster’s that the something that serves as contention “type” appellant’s tion of final defines to not sufficient particular symbolic representation; evidence in this case In this connection kind, class, synonyms group. Listed as sustain the conviction. no evi- “there was direct appears appellant Thus it asserts are “kind” and “sort”. in participation appellant’s intend- dence of stipulation that the from the robbery” entering and “no credible circumstantial defendant was seen a ditch four or involvement” in evidence of that “the along five miles from the scene of the crime [his] only appellant’s testimony evidence was re- scene, leading from the highway and he examination; garding the the ar- by trooper. It was there discovered rest foot several miles [defendant] defendant was could be inferred that at- scene, some five from hours later” and tempting to conceal himself1 and that when “possession of two bicentennial half-dollars trooper, pretended he confronted to appellant’s at the time of He arrest.” ar- although pos- be drunk he was not. In his gues place that the of arrest was consistent change including two session was $22.50 being with his stranded in the Otterville distinctive identical those taken coins being area and process walking in the awaiting While some six hours earlier. tri- home; hide, attempt he although did offense, escaped al for defendant hiding places there were vicinity in the and jail2 brought had to be back from the lying he was in the roadside ditch because state of California to stand trial. When intoxicated; pos- he was the change in his qualified asked examiner session was consistent with some success in in, participated knowledge whether he poker game evening’s and his start with of, proceeds robbery, and received from the change given some fifteen dollars in him gave negative answers which in his father. opinion deceptive. of the examiner were sufficiency In a determination of the together, Taken these circumstances are a support evidence to conviction all evidence events, with connected chain of consistent tending support the verdict must be con- other, each consistent with defendant’s true, contrary sidered as evidence disre- guilt, any and inconsistent reasonable garded, every sup- reasonable inference innocence, theory including of defendant’s porting indulged. the verdict Where the support his own. These circumstances also conviction rests on circumstantial participation defendant’s active facts circumstances to establish presence robbery scene for other, guilt must be consistent with each purposes of Instruction No. 5 in form MAI- defendant, guilt consistent with the CR 2nd 2.10. any theory inconsistent with reasonable majority sponte, has determined sua of his innocence. In such cases the evidence without contention or demonstration of guilt, need not be cоnclusive of must nor injustice miscarriage justice manifest impossibility evidence demonstrate the purposes plain for of relief of error under Franco, of innocence. 29.12(b), Rule results are not cert, (Mo. 1977), denied, banc any admissible under circumstances includ- U.S. S.Ct. L.Ed.2d stipulation to their the valid admissibili- foregoing, Viewed in accord with the ty provides in this case. This determination evidence demonstrates a submissible case: the basis the conclusion that the evi- m., approximately p. At 8:30 two men conviction. dence is insufficient sustain actively participated robbery in Missouri relieves of ne- Case law loot, taking, among sixty victim their juris- cessity foreign to cases from resort seventy change including dollars in two dis- question thus dictions for resolution of the tinctive coins. Minutes later law officers posed. in a short an area arrived and time wide Fields, (Mo. v. In State 434 S.W.2d private by police search citizens aided 1968), charged with armed defendant was by began. Citizen Band radios Later at stipulation with robbery. He into a morning reported 2:30 in the it was entered by by escape 2. Evidence of a defendant bears on Evidence of concealment a defendant is trial, guilt charge guilt. relevant on the issue of his State v. the issue of his Holt, Hamilton, (Mo.1971), (Mo.App.1978). State v. 465 S.W.2d 602 569 S.W.2d 24 by weight jury, determined State v. to be Hudson, (Mo.App.1973). 491 S.W.2d 1 Weindorf, v. reliability. State polygraph to take a test Cole, (Mo.1962); State v. “absolutely and irrevo- specifically waived S.W.2d Mo., den. 354 motion objection to the use in 188 S.W.2d cably every each and 181, 189 (1945); and State of Mo. prosecution evidence of the results S.W.2d Jacks, (Mo.App. results, opinion v. said test.” The S.W.2d 1975). However, stipulation examiner, written defendant indicated that gave the into between the attempting deception questions on the entered “was to polygraph examination administered pertained to the offense” and that his reliability, legal decep- a aura denying implication were defendant “answers infusing the conclusive results appeal thereby his convic- tive answers.” On tion, probative with value. challenged admission of the obtained defendant polygraph results on self-incrimination Id. at 814-15. grounds. affirming In conviction the (Mo. Mick, In State 546 S.W.2d court held: of first App.1976), was convicted defendant rights none defendant’s constitutional robbery. On direct examination de degree infringed, under these privileges were she had prior fendant testified that to trial circumstances, by the admission of this arranged polygraph to take a examination. weight of the evidence evidence. The held that once defend appeal On the court light solely jury, in thе of a for the “opened on the issue ant had the door” cross-examination. most extensive error for the polygraph, it was not upon declined to rule at 515. The Court Id. inquire on cross-examination as admissibility polygraph evidence place and whether the test had ever taken accept- standpoint of the scientific from the Citing State what its results had been. nonacceptance of tests or their Fields, ance supra, stated: the court ground in view of the accuracy on the general in this state that It rule waiving objec- his by defendant in- examinations are polygraph results of tions, they lack admissible evidence because permit would be almost unthinkable reliability. It support for their scientific position be, now reverse it may . However anomalous oppose reception of this evidence parties, may waive ob- by stipulation, fa- were not reason the results polygraph the sole jections to the admission of results, vorable. examinations and their reliability that sense imbue them Id. probative value. (Mo. Scott, 570 In State v. (Mo. Ghan, charged with In State App.1978), defendant was was convicted of rob- stipulat App.1977),defendant Prior to trial he common assault. he scientific bery. appeal On attacked the to admissi pоlygraph test and ed take test results en- polygraph unfa bility proved of the results. The test The court evidence the State. convicted. tered into to defendant and he was vorable held: challenged the trial court appeal he On

ruling Missouri, parties, which denied cross-examination by stipulation expert as to the rationale polygraph admissible of a general rule that the results behind the he knew trial. . . . While criminal affirming test, are not admissible. In defend- did not have to take the he said, the conviction the court given he be requested ant strategy . Defendant’s exam. stipulation entered Absent the written backfired, escape the state, now he seeks to and the between defendant into relia- raising the scientific stipulation by ad- examination objection. was no failure bility There would have to the defendant ministered bargain part of the the state fulfill as evidence because inadmissible been is that only complaint —defendant’s support for their they lacked scientific by the hoped destroyed for result was challenge cannot testi-

test. Defendant receipt stipulated

mony, the of which was By requesting ...

by him. stipulating to take the test and

agreeing into

that the results would be received objections defendant waived his admissibility.

Id. 307-308. consistently

Thus the law in Missouri has irrespective

held that of scientific examinations, parties by own,

stipulation, of their can for reasons admissible.

make the results of such tests party part stipulation, of that either

As knowingly intelligently waive

may conduct, reliability, challenges

or all to the test; upon constitutionality of the valid, finding that the permitted renege not be

parties should agreement.

on their above,

As demonstrated evidence of the surrounding robbery, in-

circumstances

cluding the results of the exami-

nation, was sufficient to sustain defendant’s ‍‌‌​​​​‌​‌‌​‌‌​​‌​​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌‌​‌​​‌​‌‌‍Accordingly, and for the rea-

conviction. stated, join majority,

sons I cannot judgment conviction.

would affirm COMPA-

JEFFERSON BANK & TRUST

NY, Corporation, a Missouri

Plaintiff-Respondent, Horst, B. HORST and Joanne M.

Gilbert

Defendants-Appellants.

No. 41302. Appeals,

Missouri Court of District,

Eastern

Division Two.

April

Case Details

Case Name: State v. Biddle

Court Name: Supreme Court of Missouri

Date Published: May 13, 1980

Citation: 599 S.W.2d 182

Docket Number: 61784

Court Abbreviation: Mo.