UNITED STATES, Appellee, v. Shawn C. CLARK, Airman First Class, U.S. Air Force, Appellant.
No. 99-0545. Crim.App. No. S29602.
U.S. Court of Appeals for the Armed Forces.
Argued Dec. 16, 1999. Decided Aug. 16, 2000.
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For Appellant: Major Marc A. Jones (argued); Colonel Jeanne M. Reuth and Major Stephen P. Kelly (on brief); Colonel Theodore J. Fink and Lieutenant Colonel James R. Wise.
For Appellee: Captain Mitchel Neurock, USAFR (argued); Colonel Anthony P. Datti-
Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of 1 specification each of making false offiсial statements and of making a false claim against the United States, violations of Articles 107 and 132, Uniform Code of Military Justice,
On appellant‘s petition for review of his case, we specified the following issues:
I
WHETHER THE STIPULATION OF FACT (PROS. EX. 1) THAT WAS ADMITTED AS EVIDENCE DURING APPELLANT‘S PROVIDENCE INQUIRY VIOLATED MIL.R.EVID. 707 AND UNITED STATES V. SCHEFFER, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), BECAUSE IT STATED THAT APPELLANT AGREED TO TAKE A POLYGRAPH TEST AND THE TEST RESULTS REVEALED DECEPTION ON HIS PART.
II
WHETHER APPELLANT‘S PRETRIAL AGREEMENT IS ILLEGAL OR VOID BECAUSE IT CONTAINED A STIPULATION TO USE POLYGRAPH EVIDENCE AT APPELLANT‘S COURT-MARTIAL IN VIOLATION OF MIL.R.EVID. 707 AND UNITED STATES V. SCHEFFER, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).
We affirm for the reasons set forth below.
I. THE REFERENCE TO POLYGRAPH EVIDENCE
A. Factual Setting
Appellant discovered his stereo speakers were missing in November 1997, on the day his household goods were being packed for shipment. Appellant did not attribute the theft to the movers, but assumed that someone had stolen the speakers prior to the move. Rather than reporting the theft, appellant filed a claim on April 22, 1998, for loss of personal property during the move, listing the speakers as missing from his shipment.
In May 1998, appellant was interviewed twice by base security personnel about his clаim. Each time, he stated that the speakers were missing from his shipment. Appellant agreed to take a polygraph test. When confronted with the polygraph results, he admitted to filing a false claim and lying to the investigator.
Appellant entered into a pretrial agreement and pled guilty to mаking a false claim and making false official statements. Appellant was required to agree to “reasonable stipulations concerning the facts and circumstances” of his case.
During the providence inquiry, the military judge reviewed the elements of the offenses, questioned appellant, and received appellant‘s description of the events at issue and his admission of guilt. After appellant completed his responses to the providence inquiry, the military judge briefly examined the stipulation of fact, which noted that appellant had agreed to take a pоlygraph test and that the “test results revealed deception.” He admitted the stipulation into evidence and entered findings of guilty. Appellant made no objections during the providence inquiry.
B. The Legal Setting
Evidence that otherwise would be inadmissible under the Military Rules of Evidence may sometimes be admitted at trial through a stipulation, if the parties expressly agree, if there is no overreaching on the part
Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.
The Analysis indicates that the rule was adopted for several reasons, including a concern that the “reliability of polygraph evidence” had not been established and its use in trials could affect “the integrity of the judicial system.” According to the Analysis,
The Supreme Court upheld the constitutionality of the per se exclusion of polygraph evidence under
C. Discussion
A stipulation of fact, which noted that appellant agreed to take a polygraph test and that he failed the test, was admitted into evidence against appellant during the providence inquiry following his pleas of guilty. Appellant made no objections at his court-martial and raised no issues on appeal. We granted review to determine whether this stipulation and the pretrial agreement, to the extent it required the stipulation, violated the ban on polygraph evidence announced in
In general, error may not be based upon admission of evidence unless there is a timely objection on the record.
Appellant has met his burden of proving the first two prongs of the plain-error test. Under
Appellant argues that the military judge must have considered the polygraph evidence when making his findings and adjudging a sentence because he failed to exclude the impermissible evidence. Review of the record reveals that the providence inquiry was substantially completе before the military judge admitted the stipulation of fact into evidence. The military judge advised appellant of his rights, explained the elements of the offenses with which he was charged, questioned appellant, and received his version of the events and a complete admission of guilt before considering the stipulation. When trial counsel offered the stipulation at the start of the providence inquiry, the judge refused it, stating: “I like to look at that only after I‘ve completed the inquiry, so I don‘t get confused by the lawyers’ version of the events.” There is no evidence that the military judge found it nеcessary to rely upon the polygraph evidence in order to accept
Senior Judgе Everett‘s separate opinion raises the question whether, in some future case, introduction of evidence concerning a polygraph examination would be necessary to avoid violating a constitutional or statutory right of the accused, which he illustrates through a scenario based upon Cooke v. Orser, 12 MJ 335 (CMA 1982). Our decision in this case is based upon the text of the Rule and the Supreme Court‘s interpretation of the Rule in United States v. Scheffer, supra. In Scheffer, the Supreme Court noted “widespread uncertainty” about the reliability of polygraphy and concluded that an accused does not have a constitutional right under the Sixth Amеndment to present polygraph evidence for exculpatory purposes at trial. 523 U.S. at 312, 317, 118 S.Ct. 1261. The present case, like Scheffer, does not present the issue of whether
II. THE PRETRIAL AGREEMENT
In light of our ruling on the first specified issue, we need not address Issue II, which asks whether appellаnt‘s pretrial agreement is illegal or void because it required a stipulation to use polygraph evidence at appellant‘s court-martial. We do note, however, that the pretrial agreement did not specifically require the stipulation to include a reference to the polygraph evidence, but merely called for “reasonable stipulations concerning the facts and circumstances” of appellant‘s case. Insofar as that phrase could be interpreted to require the polygraph evidence, the appropriate remedy would be to not enforce the impermissible terms and to strike the reference to the polygraph from the stipulation. See RCM 705(c)(1)(B), Manual, supra; United States v. McLaughlin, 50 MJ 217, 218-19 (1999). For the reasons noted above, striking those references does not affect the providence of the plea.
III. CONCLUSION
The record makеs clear that the military judge did not condition acceptance of appellant‘s guilty pleas on the mention of the polygraph evidence in the stipulation of fact. Likewise the pretrial agreement was not interpreted to require the polygraph evidence. The providence inquiry was substantially complete, and the military judge had already heard appellant‘s admission of guilt before the polygraph evidence was even introduced at trial. In that context, we find that the error in admission of the portions of the stipulation dealing with polygraph evidencе was not prejudicial. See
IV. DECISION
The decision of the United States Air Force Court of Criminal Appeals is affirmed.
CRAWFORD, Chief Judge (concurring in the result):
The Ninth Circuit‘s analysis is directly contrary to the approach we hаve taken in the context of a broad array of constitutional and statutory provisions. Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption. . . . A criminal defendant may knowingly аnd voluntarily waive many of the most fundamental protections afforded by the Constitution. . . . Likewise, absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by voluntary agreement of the parties.
Id. at 200-01, 115 S.Ct. 797 (citations omitted). That rationale applies here.
EVERETT, Senior Judge (concurring in the result):
I concur in the result. If error occurred at trial—as Judge Effron concludes it did—clearly it could not have prejudiced appellant.
I have serious doubts, however, that error was committed. Admittedly,
Some care is required, however, in the interpretation and applicаtion of
Finally, it deserves note that to apply
In view of the extensive use of polygraph tests in connection with interrogations, other situations can readily be imagined in which taking a polygraph test and discussing the results with a suspect may be logically quite relevant in determining whether the suspect‘s subsequent statement to investigators was voluntary. I doubt that the President intended to exclude all reference to polygraph testing under these circumstances. Likewise, I question whether
In short, by finding that an error was committed at trial in this case, the Court may be setting the scene for unintended and undesirable consequences in future cases.