2006 Ohio 1432 | Ohio Ct. App. | 2006
{¶ 2} Appellant's sister, D.M., a seventh-grader, kept a journal in which she wrote that appellant had molested her. The assaults ranged from incidents of inappropriate touching, to forcing D.M. to engage in fellatio, and ultimately vaginal intercourse. D.M.'s mother discovered the journal and read the entry which documented the abuse. Instead of informing police, she took steps to keep the two separated. D.M. was unsatisfied with her mother's response and reported the assaults to her school guidance counselor. The counselor notified children's services who in turn notified the police.
{¶ 3} Appellant was interviewed by a Mason police officer. The interview was videotaped. During the interview appellant admitted that his sister had performed fellatio on him but denied that he had had vaginal intercourse with her. He was then asked to undergo questioning while monitored by a computerized voice stress analyzer ("CVSA").1 The questioning detective and appellant together formulated a series of questions. As they discussed the questions, they also talked about appellant's sexual contact with D.M. Appellant submitted to the CVSA. The detective informed appellant that he had failed the CVSA, although he did not discuss the results in detail with appellant. During the course of the interview appellant's prior DUI conviction was also mentioned.
{¶ 4} Appellant was indicted on two counts of rape in violation of R.C.
{¶ 5} In his first assignment of error, appellant argues that admission of the evidence related to the CVSA was improper.
{¶ 6} The admission or exclusion of evidence is a matter committed to the sound discretion of the trial court. See Statev. Allen,
{¶ 7} While the case law on point is sparse, both Ohio and federal courts have analogized the admissibility of a CVSA exam with the admissibility of polygraph test results. See Traficant
(granting motion in limine to exclude results of CVSA because, like polygraph test, the reliability of the test's results are not generally accepted); State v. Jaynes (Jan. 29, 1993), Auglaize App. No. 2-92-3 (following requirements for admission of polygraph test set forth in State v. Souel [1978],
{¶ 8} In Souel, the Ohio Supreme Court held that, "[d]espite the ongoing controversy concerning the degree of accuracy of the polygraph device, it is our opinion that observance of [certain] qualifications establishes a proper foundation for the admission of polygraph test results, and that these results have probative value in the determination of whether the examinee has been deceptive during interrogation."Souel at 133. In its syllabus, the court very clearly set forth the requirements for admissibility of polygraph test results, and required, as a threshold matter that "[t]he prosecuting attorney, defendant and his counsel must sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion thereon on behalf of either defendant or the state."
{¶ 9} Applying the Souel requirements to the CVSA evidence in the present case, it is clear that the trial court should have excluded the evidence because there was no written stipulation to its admissibility. However, appellant failed to preserve this issue for appellate review by not raising an objection. Appellate courts generally will not consider errors which counsel could have called, but did not call, to the trial court's attention when such error could have been avoided or corrected by the court. State v. Joseph,
{¶ 10} However, in the present matter, appellant not only failed to object, but in fact requested the trial court to submit the evidence to the jury. Plain error does not exist where the error complained of is invited. See State v. Totarella, Lake App. No. 2002-L-147,
{¶ 11} We further note that, before playing the video, the trial court instructed the jury that "[t]he results of the CVSA test are not admissible as evidence in this case and should not be considered by you in your deliberations." The court again instructed the jury before deliberations that it was not to consider any evidence which it had been instructed to disregard. A jury is presumed to have followed the court's instructions, including instructions to disregard evidence. State v. Loza,
{¶ 12} In his second assignment of error, appellant alleges that his trial counsel was ineffective for failing to object to the references in the videotape to the CVSA, its results, and his prior DUI conviction.
{¶ 13} To establish ineffective assistance of counsel, a defendant must show "(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Sapp,
{¶ 14} Appellant's trial counsel adopted a strategy of demonstrating that appellant, in an effort to avoid conflict and stress, would confess to things he had not done. Counsel called a series of witnesses who testified to this effect. Admitting the videotape and CVSA evidence which confirms his stress level during the interview, is consistent with this tactic. While the wisdom of this tactic may be debatable, trial tactics and strategies, even "debatable trial tactics," do not constitute a denial of effective assistance of counsel. State v. Leonard,
{¶ 15} Appellant further argues that counsel was ineffective for failing to object to a reference in the video to his prior DUI conviction. In reviewing this contention, we must indulge in the strong presumption that counsel was following a sound trial strategy when he failed to object to the evidence. Failure to make objections does not automatically constitute ineffective assistance of counsel, as that failure may be justified as a tactical decision. State v. Conway,
{¶ 16} Judgment affirmed.
Young and Bressler, JJ., concur.