State v. Renfro

damages damages plaintiffs. dated issue falls as no are due attorney No fees are due as the defendants have not vio- 49.46.090(1). lated RCW See RCW 49.46.

Reversed. C.J., Rosellini, Brachtenbach, Stafford, Utter, Hicks, JJ., Tern., J. Pro Williams, Dimmick, Cochran, concur. May

Reconsideration denied 1982. January En 47652-7. Banc. [No. 1982.] Rudolph Respondent, Washington, The State Petitioner. Renfro, William Fogh, petitioner (appointed Tim O. for for appeal). Maleng, Prosecuting Attorney, Maida,

Norm Joanne Y. Deputy, Deputy, Lobsenz, Senior and James E. respondent. by jury a J. Defendant Renfro was convicted Dolliver, degree prostitute. agree We with

of the first murder of a (State Appeals Renfro, 28 Wn. the Court of (1981)), that no error was committed and Q04

affirm conviction. (1) appeal: Did the court Five issues are before us on trial admitting stipulated polygraph test; in of the results err (2) if the of test are found to be results by failing give admissible, err did court then (3) limiting allowing instructions; did the court err prior prosecution rape to use the defendant's conviction for (4) impeachment; defendant denied effective assist- was (5) counsel; on the ance did the court comment Const, 4, § violation art. 16? morning 9, 1978, On the December defendant manager, rented room at a local motel. The assistant Kathy Chapman, showed the defendant and the victim body later, the room. About 8 hours the victim's was dis- lying covered on the of death deter- bed. cause was strangulation. mined to be days questioned

Renfro When was arrested several later. being Seattle detectives he asked whether he was having "raped" victim, accused "choked" or even though police him the had informed circum- not the death. Other stances her circumstantial scientific with crime. evidence tended to connect the defendant the upon which victim Hairs on bed sheet the was found the microscopically to the defendant's. Oil stains were similar those on a on the bed were also consistent with found sheet police Chapman the from the defendant. Ms. towel seized as the identified the towel the one she had seen defendant wearing morning neck the The around his the murder. day signed register using alias, the an defendant motel that given key was the room where the victim was to key That found his car after his arrest. found. same was key, though given the Even he had been defendant repeatedly Chapman the to his Ms. unlock door asked give key night claiming him that he had room or a master out of locked himself the room. defense, had

In his own defendant testified that he dropped named victim off with a man at motel supposed to kill time. victim "Earl" and then left The was

9Q5 him. by "run on a trick" with "turning a scam" Earl room, to the the victim When the defendant later returned was dead. polygraph

The volunteered to take a examina- defendant he, and the State stipulated tion both his counsel admissibility indicated of the results. The examination practicing deception killing defendant was when he denied victim. were polygraph The results examination given to No was with jury. given instruction offered or reference the examination. allowed to objection,

Over the defendant's the State was purposes introduce evidence for that impeachment prior rape. ruling defendant had a conviction for This challenged appeal on despite the fact that on direct exami- nation defendant attempted report excuse his failure to by the victim's death repeated police and his lies to the arguing that he feared probation prior conviction would be revoked. general rule Washington polygraph has been that

testimony stipulation by is inadmissible absent par- both Sutherland, 527, 529, State v. ties. 94 Wn.2d 617 P.2d 1010 Woo, 84 Wn.2d Defendant despite now claims that the stipulation polygraph results should still be inadmissible because the stipulation does not make the test more reliable. He stipulations law, also contends that change cannot generally evidence of a examination is excluded ground technique on the not general has attained Descoteaux, acceptability. scientific 94 Wn.2d 614 P.2d 179

It stipulation parties true that the mere reliability will not increase the test. The record before us is to conclude that insufficient us it polygraph has risen to the level where it can be said that enough is reliable to be with the standard of consistent Woo, v. guilt required supra. criminal cases. See State issue, however, by itself The is not whether this evidence is by element support proving able to a criminal conviction an beyond Rather, of the crime reasonable doubt. it is enough polygraph whether a reliable to be test is relevant. relevancy The test of dency is whether the evidence has a '"ten proved to make the existence' of to be 'more fact probable probable it less than would be without the evi (8th Oliver, 731, n.11 dence". United States 525 F.2d 1975); App. Jimerson, Cir. see State 27 Wn.

P.2d 1027 stipulation pros case, there is a in this When as knowing degree defense, ecution and the that the of reli ability question, open gamble is effect that the test prove Under will favorable them. this circumstance and requirements met, case, if in this listed below are we stipulation of will enforce a and admit the test. results polygraph are not examination admitted because completely reliable, is but rather because is reliable test enough parties, from relevant. Both each a different be perspective, polygraph believed the result examina by stipulation would to the case and their tion be relevant degree reliability question as waived supra; polygraph. Dean, v. Renfro, see State v. N.W.2d 628 103 Wis. 2d parties stipulation needed, More how- than safeguards be further before ever. There must may Ross, In State v. 7 Wn. be admitted. (1972), the Court of 53 A.L.R.3d 997 Appeals, drawing Valdez, on the Arizona of State case (1962), requirements Ariz. set forth these examination: for the admission (1) attorney, [prosecuting] defendant and That stipulation providing sign a written all to the test and the subse- defendant's submission quent graphs and the at trial of examiner's admission opinion or the on behalf either defendant thereon state. (2) notwithstanding stipulation admissi- That subject bility the discretion of the test results is judge judge, if the is not convinced that the i. e. trial qualified was conducted examiner or that the test may accept proper conditions he refuse to such under evidence. (3) opinion graphs if and That examiner's are opposing party offered in evidence the shall have the right respecting: examiner cross-examine the qualifications training; a. the examiner's and

b. which admin- the conditions under the test was istered; possibilities c. error in the limitations for interrogation; technique polygraphic judge, d. at discretion of the trial other matter inquiry. pertinent to deemed (4) judge if That such evidence is the trial admitted jury testimony should instruct that the examiner's prove disprove any does not tend to crime with element of the charged which a defendant is but at most only to at

tends indicate that the time of the examination telling Further, defendant was not members should be instructed that the truth. it them to weight determine what corroborative such effect tes- timony given. be should supra adopt Valdez, State at We these 283-84. stand- ards as the law this state. is no

There contention the first three standards have only question not been The jury met. whether trial court (4) give must safeguards instructions indicated under requested by if even the instructions are neither party. Trotter, Unlike Arizona Ariz. (1973), P.2d we feel do not that the trial court is required give sponte they the instructions sua if have not requested. been These instructions are not crucial to con process application stitutional due which is insured safeguards. Rather, of the first three the instructions are strategy relevant to the of individual trial counsel and must purview. remain that within request refusing appears case,

In this the instructions strategy to be with the consistent When defendant. stipulated polygraph proved unfa- examination to be attempted vorable, defense counsel the best make attempted what defend- he had. Counsel to show proclivity police lying ant's if the was based on fear that associating, proba- whom found out with he had been rape tion for the earlier conviction would be revoked. In argument, closing show the defense tried to deception was indeed correct because limiting was this To then ask for instruc- detected fear. contrary argument. tion would have been to his We will not guess the counsel. second tactics of trial 609(a)(1) provides punish- ER that conviction crime year by imprisonment in able excess of can be used to credibility if attack the of a witness "the court determines admitting probative that weighs the value of this evidence out- prejudicial There its effect to the defendant". is to crimes of merit usually the contention that an assaultive nature only probative veracity slight

have of value (Gordon (D.C. 1967)), States, v. United F.2d 383 Cir. 936 parallels crime for and when the that which a defendant being prejudice magnified. tried, is United States witness (2d 1971). Puco, v. F.2d Cir. The decision on admission, however, rests within the sound discretion the Alexis, 15, 16, v. State 95 Wn.2d 621 P.2d trial court. (1980). pretrial sought motion,

In defense to exclude testi- the rape. mony regarding prior the defendant's conviction probative balancing prejudicial In the value with the effects, that, court unless the raised ruled defendant the question prosecutor examination, on direct was limited asking if been the defendant had convicted crime Despite and, so, if what was the crime. the fact defend- probationary on ant raised his status direct examination subject opening state- defense raised only prosecutor ment, the court allowed still asked what ruling. in its during subject was raised direct

When later prosecutor inquire examination, into this allowed Hultenschmidt, 87 Wn.2d nature of the offense. State (1976). contends Hul 550 P.2d defendant applicable under tenschmidt is not as was decided evidentiary rules the time the court lacked dis- old and at

9Q9 prior convictions. whether to admit cretion on (1977). argu- This Ruzicka, P.2d 1208 89 Wn.2d point Hultenschmidt which stands ment misses subject proposition been that once a has still valid inquiry proper during further direct examination raised on cross-examination. deprived of a fair next claims he was

Defendant in Wash his trial counsel was ineffective. The test because ington "[ajfter considering record, can the entire is whether repre it be said that the accused was afforded an effective impartial Thomas, State sentation and a trial". fair 470, 471, 71 Wn.2d This court has of counsel when the refused to find ineffective assistance theory complained go actions of counsel Ermert, case to trial tactics. 94 Wn.2d Mode, P.2d 121 see also 57 Wn.2d easy retrospect While it is to find fault with tactics strategies gain acquittal, failure of failed to an initially appeared approach what not be a valid does render the action of trial counsel reversible error. Both poly- defense counsel and graph felt the defendant take a stipulate examination and its admission was the proper course of action. When the results of the simply proved against defendant, test to be counsel tried to make the best of a bad situation and use to his defendant's failure of the examination pretrial advantage. Likewise, in after he failed his motion prior conviction, the offensive exclude the seized subject downplay in and himself an effort to raised importance might to it. course of be attached Neither action of law to constitute error. can be said as a matter approval issue, with the lan

As to the final we cite guage Appeals: of the Court of

Finally, court commented defendant contends the trial 4, in of the objection on the evidence Washington violation of article section 16 ruling In on an State Constitution. judge during opening statement, the trial the State's 910 objection going

stated: preceding to be to the "The sustained regarding jury comment threats. The will be by disregard ruling instructed to that statement." This impermissible the court did not an comment. constitute judge A trial has commented on the evidence if he or she conveyed jury personal opinion has regarding to the or her falsity truth or introduced evidence Bogner, at trial. State v. Wn.2d 62 382 ruling A as made here is not comment such was on the evidence. supra Renfro, at 256.

The conviction is affirmed. C.J., Brachtenbach, Stafford, Utter, Hicks, Wil- and Dimmick, JJ., liams, concur. (dissenting) J. from lie results Dore, —Because pos- reliable, tests been to be

detector have not shown high potential prejudice, they generally are inad- sess (1973). Stipulations Annot., See missible. 53 A.L.R.3d 1005 process make nor neither more accurate eliminate danger fact-finding usurpation jury's I role. admitting would, therefore, hold the court erred objection. Fur- over the defendant's by magnified thermore, the error was court's failure protect right properly cau- defendant's to a fair tioning potential imperfections of such as to polygraph tests. Young,

Polygraph are 87 test results uncertain. (1976); 129, 131-32, Woo, 84 Wn.2d 550 P.2d State Pleasant, 21 Wn. Wn.2d 527 P.2d 271 (1978), App. 177, denied, 188-92, review denied, 935, L. Ed. 2d Wn.2d cert. U.S. (1979); People Leone, Ct. 2058 25 N.Y.2d S. N.E.2d Crim 307 N.Y.S.2d Oklahoma Appeals responsible factors inal Court of identified five (2) (1) tension, error these examinations: emotional (4) (3) physiological abnormalities, abnormalities, mental (5) unresponsiveness lying subject, guilty unob- in a

911 produce ambiguities served muscular movements which misleading pressure tracing. indicators the blood Hen State, 495, 501-02, v. derson 94 Okla. Crim. 230 P.2d 23 (1951). State, A.L.R.2d 1292 See also v. Romero 493 (Tex. 1973). App. Polygraph experts S.W.2d Crim. way precisely measuring concede that accuracy there is no Inbau, of the "lie detector". J. Reid & F. Truth (2d 1977). Deception Additionally, 303-04 ed. competency potential of the examiner is a source of error. (1976); App. Tavernier, 27 Or. 555 P.2d 481 (M.D. 1972). Supp. Lanza, United States v. F. Fla. Highleyman, Deceptive Certainty See The the "Lie (1958). Hastings Detector", L. J. 57-61 polygraph Triers of fact also tend to view evidence as guilt conclusive on the issue of the Romero accused. supra People State, v. 211; Davis, 348, 373, at Mich. Alexander, N.W.2d 269 United States (8th 1975). F.2d Richardson, 169-70 Cir. See J. Mod- ern Evidence Scientific despite polygraph's reliability Yet, uncertain potential danger majority use, incident its holds that upon stipulation parties, prior administration may tests, test results be admitted into holding criminal trials as evidence. This smacks of Russian betting pass roulette. The defendant he will the test prosecution hoping while the that the test will show lying. stipulation nothing defendant is has little or guilt do with the or innocence of the defendant. expressed by A better view was the Ohio Court of Appeals Hill, 16, 23, in the case of State v. 40 Ohio 2d 317 N.E.2d logical not . . . We do consider it to hold reasonable [polygraph] probative evidence has value when stipulation proba- offered under a . . . but has no stipulation. tive value without such consistently

Courts with this outlook have refused to admit objection, without over defendant's regard parties' stipulation. supra; State, Romero (Tex. App. 1973); State, v. Lewis 500 167 Crim. S.W.2d (Alaska 1970); Conley State, v. 474 v. Pulakis 476 1964); (Ky. App. Commonwealth, Stone 382 865 Ct. S.W.2d (1951); Earp, Hill, v. v. 606, Mich. N.W.2d 172 State 331 50 App. (1974); 16, 40 2d N.E.2d LeFevre v. Ohio 317 233 (1943); 416, State, Corbin, 242 v. Wis. 8 N.W.2d 288 (La. 1973); Sadrzadeh, 285 2d United 440 So. 234 States (9th 1971); App. State, Cir. Chambers v. 141 Ga. F.2d 389 438, (1977); Monigan, People 72 Ill. 233 S.E.2d 818 (1979); 87, State, N.E.2d 3d 390 Akonom v. 40 Md. 562 App. 676, Biddle, A.2d State v. 599 1213 S.W.2d (W. (Mo. 1980); Frazier, 182 1979). Va. S.E.2d polygraphs changes to in Because are sensitive muscular pressure, very stipulating tension and blood act of of the test results could increase the defendant's admission accuracy. level, which Truth tension reduces machine's Deception, supra Furthermore, we do not at 37-38. many know that the defendant understood the variables interpretation in inherent the administration and of the stipulation. test when he entered the agree Supreme I with the Court of statement People Zazzetta, in Ill. State of Illinois 2d (1963): 189 N.E.2d 260 may understandingly stipulate While a defendant may many objections, trial, in much a criminal waive manifestly by stipulation it him a

we think unfair bind regarding opinion the trustworthiness scientific far beyond expected ken. It is inconsistent unfair courts affirm the simultaneously unreliability of lie tests and admit detector stipulated doing so, into In I evidence results test. that the erred.1 would hold trial court to his when that an 1 The offered under certain circumstances defense. accused only In time Chambers v. be allowed Chambers, Mississippi, present test results court held that even 410 U.S. by might in defendant. be his own behalf properly though L. Ed. 2d Due admitted would be the testimonies process requires which is critical 93 S. Ct. to caution magnified failing its error The trial court testimony does not tend the examiner's jury which crime with element of the prove disprove only to indicate most tends charged defendant is but at not tell defendant was at the time of the examination Further, should be members the truth. ing what corrobora for them to determine instructed that testimony given. should be and effect such weight tive Valdez, Ariz. Valdez embodied the fourth of the message That adopted by majority. which were Because requirements test, credibility the "lie-detector" mystique surrounds as fact finder favor of juries tend to abdicate their role defendant's test results. This strikes at the heart very court right jury. Sixth Amendment to trial The the Valdez which has ruled that failure drafted standards cautionary sponte to sua was error. give the instruction Trotter, See Ariz. (1972). I McDavitt, also State A.2d 62 N.J. heartily agree.2 "hearsay," persons upon three offered as witnesses for the defense were based very hearsay reliability" critical to since were of "considerable statements defense, admissibility testimony process of the the defendant's due mandated the to insofar as was favorable the defense. entitling interpreted Appeals a for New Chambers as The Court Mexico Dorsey, polygraph on criminal defendant to admit test results his behalf. (Ct. 1975). directly rights N.M. constitutional "[W]here right affecting guilt implicated", process to a fair ascertainment of are the due accusations, Chambers, opportunity against at could to defend the State's Supreme polygraph

justify Court introduction of evidence. The New Mexico process rights provide special agreed basis for the the defendant's due a Dorsey, I N.M. 539 P.2d 204 admission of such evidence. State adopt Washington. would this rule in polygraph Allowing under these circum- to introduce the defendant denying opportunity prosecution with our to the is consistent stances while system's justice presumption If the tradi- of the accused's innocence. criminal they process, compromised in the name of due tional rules of evidence are to be right compromised only for whom this constitutional is due. should be for those deciding specifies whether official comment to ER 403 that "[i]n 2 The given prejudice, grounds be on consideration should exclude evidence unfair limiting probable instruction". of effectiveness of a effectiveness lack majority responsibility denies the trial court's on instruct as to the limitations the evidence and attorney's of defense justifies product the omission as the strategy. explain trial Counsel tried to the test results way story. which the defendant's But the would corroborate reliability regardless test results are of uncertain strategy, they reliability as are of uncertain just chosen trial regardless parties' stipulations. of the help

Whether evidence is used to probative defense or the it is still of limited prosecution, duty In point failing value. The court had a this out. instruction, necessary cautionary court give the Valdez error. aggravated its earlier

I on stipulation would results of a test admit time of parties only if the results were known at the cautionary by the stipulation, upon instruction judge as to the test's limitations. above, I For outlined dissent. the reasons J., J. Rosellini, Dore, concurs with Reconsideration denied March 1982. January 15, En Banc. 47716-7. 1982.]

[No. Eugene Department Spring, Petitioner, R. v. The Industries, Respondent.

of Labor recognition proper Implicit reduce instructions can in this statement is the argued potential prejudice. that the admission of It could be cautionary contemplating constituted instruction for the without an abuse discretion.

Case Details

Case Name: State v. Renfro

Court Name: Washington Supreme Court

Date Published: Jan 15, 1982

Citation: 639 P.2d 737

Docket Number: 47652-7

Court Abbreviation: Wash.