STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
Defendant Below, Appellant
Appeal from the Circuit Court of Wyoming County
Honorable John S. Hrko, Judge
Criminal Indictment No. 93-F-42
REVERSED AND REMANDED
Submitted: 17 January 1995
Filed: 24 March 1995
Darrell V. McGraw, Jr., Esq.
Shawn Anthony Taylor, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
Lewis J. Palmer, Jr., Esq.
Fairmont, West Virginia
Richard G. Rundle, Esq.
Pineville, West Virginia
Attorneys for the Appellant
CHIEF JUSTICE NEELY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUSTICE CLECKLEY deemed himself disqualified and did not
JUDGES FOX and STEPHENS sitting by temporary assignment.
1. "Polygraph test results are not admissible in
evidence in a criminal trial in this State." Syl. Pt 2, State v.
Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979).
2. Reference to an offer or refusal by a defendant to take a polygraph test is inadmissible in criminal trials to the same extent that polygraph results are inadmissible.
Neely, C. J.:
Eleanor Chambers appeals from her conviction by a jury,
on 17 November 1993, of first degree arson, by procuring the
burning of her home in violation of W. Va. Code 61-3-1 . The
trial court sentenced Mrs. Chambers to not less than two nor more
than twenty years in the West Virginia State Penitentiary.
Execution of the sentence was stayed pending this appeal.
In January 1993, Mrs. Chambers bought a house for $17,000
from her brother, John Bryant. She made a $2,000 down payment and
agreed to make payments of $134.96 each month until the house was
purchased. Mrs. Chambers insured the house with Allstate Insurance
Company for $45,000. The previous owner, who had defaulted on
mortgage payments to Mrs. Chambers' brother, had also purchased
Allstate Insurance for the house in the amount of $45,000.
Mrs. Chambers was home alone on the evening of 15 April
1993 when she felt sick and went to the hospital. The hospital,
located approximately one hour from her house, admitted her at 2:35
a.m. on 16 April. She was discharged at 3:20 a.m. the same
morning. Mrs. Chambers drove to her mother's house, approximately
35 to 40 minutes away from the hospital, instead of returning to her own house. At 3:29 a.m., 16 April, the Mullins Volunteer Fire
Department responded to a fire at Mrs. Chambers house. Mrs.
Chambers asserts that she was unaware of the explosion and fire
that destroyed her house until she returned from her mother's house
two days later.
The cause of the fire at Mrs. Chambers house was
initially described as "undetermined" in a report by the Mullins
Volunteer Fire Department. However, subsequently the report was
altered by the Department, indicating that the fire was
"suspicious." Allstate insurance company, Mrs. Chambers' insurer,
hired UBA Fire and Explosion Investigation to investigate the fire.
UBA's report was broken into three parts.
The owner of UBA who is also an engineer wrote two parts
of the report and concluded that the cause of the fire was
undetermined. However, part three was written by the Assistant
Fire Marshall, Paul Richie, Jr. who concluded that the fire was
incendiary and had been caused by a timing device. There was
severe damage in approximately three-fourths of the house, with
moderate damage elsewhere. No bed springs, furniture or other
typical indications of occupation were observed by the fire
incident commander responding to the scene. On 16 July 1993, Mrs.
Chambers was indicted on one count of first degree arson. Following a jury trial, Mrs. Chambers was convicted and sentenced.
Mrs. Chambers appeals from the guilty verdict, asserting
that the trial court erred in admitting evidence that she was
offered the opportunity to take a polygraph test, which she
declined to accept.See footnote 1 During the prosecution's case-in-chief,
Police Chief James F. Miller and State Fire Marshall Investigator
Paul C. Richie both testified that an offer to take polygraph test
was made to the appellant. Mrs. Chambers asserts that the
admission of evidence that she initially agreed to submit to a polygraph test, and then later refused to do so, constituted
reversible error. We agree.
Syllabus Point 2 of State v. Frazier, 162 W.Va. 602, 252
S.E.2d 39 (1979) unequivocally states that "[p]olygraph test
results are not admissible in evidence in a criminal trial in this
State." Recently, in State v. Wilson, 190 W.Va. 583, 439 S.E.2d
448 (1993), we overturned the conviction of a defendant because a
police officer testifying for the State introduced the results of
a polygraph test taken by the defendant, without objection by
counsel. The defense later submitted a jury instruction on the
inadmissibility of polygraph results, which was refused.
On appeal, we held:
[T]he lower court erred by failing to give the desired instruction regarding the inadmissibility of polygraph test results, so that the jury was not left to speculate on the results and why they were not placed in evidence. We also hold that although no objection was made to the introduction of evidence regarding the actual results of the polygraph, introduction of such evidence is plain error.
Wilson, 190 W.Va. at 589, 439 S.E. 2d at 454.
The State argues that our general rule regarding the
inadmissibility of polygraph test results in criminal trials is not
implicated by the facts of this case because Mrs. Chambers never took a polygraph, and no reference to test results, per se, was
presented. However, we find that it would be inconsistent and
ineffective to permit evidence of a defendant's acceptance or
denial of an offer to take a polygraph test, while ostensibly
enforcing a blanket prohibition on the admissibility of polygraph
test results. The same prejudicial and unreliable inferences about
the innocence or guilt of the defendant will result from such a
flawed approach to this issue.
An Illinois court concisely summarized our concerns,
Testimony that a defendant was offered a polygraph test, or that he refused one, interjects into the case inferences which bear directly on his guilt or innocence: either he failed the test -as the State presumably would not pursue charges against an innocent- or he refused to submit to testing in fear that his guilt would be shown. That which may not be accomplished directly by evidence of polygraph test results, may not be accomplished indirectly by references to whether a defendant sought, declined, or was offered a polygraph test.
People v. Eickhoff, 471 N.E.2d 1066, 1069 (Ill. App. 4 Dist. 1984).
Particularly suspect is the fact that neither Police
Chief Miller, nor State Fire Marshall Investigator Richie, was
naive or inexperienced as a witness such that reference to
polygraph testing might have inadvertently been made. In fact, the
transcript reveals that the polygraph evidence came out during questioning by the State, in answers that were not particularly
responsive to the questions which preceded them. It seems highly
unlikely that both of these witnesses innocently injected a
reference to polygraph testing.
In any event, the admission of Mrs. Chambers' refusal to
take a polygraph test was plain error. We hold that reference to
an offer or refusal by a defendant to take a polygraph test is
inadmissible in criminal trials to the same extent that polygraph
results are inadmissible.See footnote 2 Other jurisdictions considering this
issue have also concluded that "[e]vidence regarding the results of
a polygraph test or the defendant's willingness or refusal to
submit to one is inadmissible." [Citations omitted.] State v.
Pressley, 349 S.E.2d 403, 404 (S.C. 1986); See also Russell v.
State, 798 S.W.2d 632 (Tex. App.-Fort Worth 1990); State v. Fenney,
448 N.W.2d 54 (Minn. 1989); People v. Eickhoff, 471 N.E.2d 1066
(Ill. App. 4 Dist. 1984); State v. Biddle, 599 S.W.2d 182 (Mo.
1980); State v. Driver, 183 A.2d 655 (N.J. 1962).
For the foregoing reasons, the judgment of the Circuit
Court of Wyoming County is reversed.
Footnote: 1 The Appellant's brief lists ten assignments of error. She contends that the trial court erred: (1) in not setting aside the verdict because of the failure of a juror and the assistant prosecutor to disclose a prior attorney-client relationship, during jury selection; (2) by allowing an expert witness to testify that, in his opinion, the appellant was guilty of first degree arson; (3) in denying appellant's motion for a new trial on the grounds that the verdict was not responsive to the indictment; (4) in admitting the introduction of hearsay evidence, by an expert witness, that the appellant had previous fires; (5) in permitting the State to cross-examine the appellant about attorney-client communications; (6) in giving State Instruction No. 2; (7) in giving State Instruction No.3; (8) because the evidence was insufficient to support a guilty verdict for "procuring to burn"; (9) in admitting prejudicial irrelevant and hearsay evidence; in admitting evidence that the appellant was offered a polygraph test, and that she rejected the offer. We need not consider the assignments listed above because we are reversing on the grounds of the polygraph evidence, and these other grounds are not fairly raised.
Footnote: 2 We note that the trial judge's curative instruction, merely advising the jury that the results of polygraph tests are not admissible over objection in criminal trials, was insufficient.