APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment of the circuit court of St. Clair County entered upon a jury verdict finding him guilty of the crime of murder.
1 The principal question in this case is whether the trial court committed reversible error in admitting into evidence the results of a polygraph test over the objection of the defendant, when prior to trial the defendant, his attorney, and the State's attorney entered into a stipulation that the defendant would take the test and that the test results would be admissible in evidence. We hold that the results of the test were inadmissible in spite of the stipulation.
2-4 Some of the reasons we so hold are:
(1) A polygraph test is not independent proof of any fact, but merely bears on the credibility of the defendant.
(2) The admission of the polygraph test has such an impact on the jury that the truth-seeking function of the trial will be destroyed.
(3) Unreliable evidence should not play a major part in the conviction or acquittal of a person charged with a crime.
(4) A stipulation cannot make unreliable evidence reliable.
(5) A stipulation that makes unreliable evidence admissible is contrary to public policy.
(6) A stipulation that unreliable evidence is reliable is really a stipulation of law and therefore invalid.
(7) It would be inconsistent for a court to refuse to admit polygraph tests into evidence because they are unreliable and then admit them into evidence by stipulation.
The testimony at trial indicated that Eula Ike and the deceased arrived at Blackman's Pepperroom Lounge in East St. Louis at approximately 8:30 p.m. on October 6, 1976. An argument between the victim and defendant occurred between 9:15 p.m. and 9:30 p.m., while the victim and Ms. Ike were dancing. Upon returning to their seats, defendant was in the victim's seat. When asked to leave his seat, defendant stated to the deceased, "I remember you." Defendant then began walking away. According to Ms. Ike's testimony, however, defendant rushed back at the victim and pushed him against the wall. Deceased Allen picked up a glass and hit defendant in the face with it, drawing blood. Whereupon defendant pulled a pistol from his waistband and shot the victim. Ms. Ike had an unobstructed view of the shooting, being approximately five feet from the defendant at the time. She stated that she was certain it was the defendant who shot the deceased, and that she did not notice a gun on the victim's person while she was dancing with him. On October 7, 1976, Ms. Ike made a definite photographic identification of the defendant at the East St. Louis Police Department. She selected defendant from a mugbook.
Larry Drisdel, an employee of the lounge, testified that he picked up the victim and Ms. Ike and they arrived at the lounge between 8 p.m. and 8:30 p.m. on October 6, 1976. Drisdel identified the defendant as the person who killed the victim. He stated that an argument between the defendant and the victim began when the defendant put his cigarette out on Ms. Ike's purse. When Drisdel tried to break up the argument, defendant stuck a pistol in his side. Defendant put the gun back in his waistband and proceeded toward the door as if to leave, but then rushed toward deceased. A fight began and people gathered around. Drisdel said he tried to break up the fight, but Jerome Lockett was in his way. Then a shot was fired. Drisdel testified that he did not see who fired it, but was certain it was not Lockett. Drisdel went to the hospital with Ms. Ike and the deceased. The following day he made a photograph identification of the defendant as the man who stuck the gun in his side.
On September 12, 1977, preceding the trial, the defendant, his attorney and the State's attorney entered into a written stipulation whereby defendant agreed to submit to a polygraph examination. The parties also agreed that the result of the examination could be offered into evidence by either party, that in such case the opposing counsel could cross-examine the polygraph examiner, Michael Musto, that the trial judge would be requested to issue a limiting instruction on the value of polygraph results, that the defendant knew he was not required to undergo such an examination and that the results would otherwise be inadmissible. On September 13, 1977, the trial judge ordered the defendant to undergo the polygraph examination.
Musto testified that he was employed by the Illinois Department of Law Enforcement, Bureau of Scientific Services, and was one of approximately 150 licensed polygraph examiners in Illinois. He testified to the nature of such an examination and said he had conducted 1000 or more polygraph tests.
Musto said that the defendant consulted his attorney by phone prior to taking the test. Musto believed that the detectives who brought the defendant to the test had informed him of his constitutional rights. Musto did not see the defendant sign the necessary forms used by the State of Illinois, but the detective gave him the forms bearing the defendant's signature.
Musto testified regarding the pretest interview. Background questions regarding the defendant's health were asked and defendant responded that he had undergone open-heart surgery at some prior time. Musto said he did not determine what kind of heart condition defendant had. However, defendant stated that he was not in any pain therefrom or on any medication at the time of the examination. Musto also explained the questions that would be asked defendant during the examination prior to defendant's being connected to the polygraph machine. The operability of the machine was tested prior to the examination and Musto testified that the machine was in working order.
Some preliminary control questions were asked initially for comparative response purposes. Then the examiner asked what he termed "relevant" questions and the defendant answered. Musto testified as follows to the truthfulness of the answers the defendant gave:
"Based upon this subject's polygraph testing on the following questions, `On October 6, 1976, did you fire a gun at Kevin Allen in the Pepperroom Lounge?' When this subject answered, `No,' the polygraph record indicated that he was very definitely not telling the truth on that. On the question, `On October 6, 1976, did you shoot Kevin Allen?' This subject answered, `No.' The polygraph records show that this subject was not being truthful on that question. On the questions, `On October 6, 1976, did you have a gun in your possession in the Pepperroom Lounge,' the subject answered `No.' The polygraph records indicated that this subject was not being truthful to that question. And, `Did Kevin Allen hit you before any fighting ensued in the Pepperroom Lounge,' the subject answered, `Yes.' The polygraph examination of this subject indicated that he was not being truthful on that question."
Musto further testified that polygraph results were from 85% to 95% accurate, while admitting that the scientific community does not accept a polygraph as an infallible test. While admitting that certain heart conditions could affect the accuracy of polygraph results, Musto said he saw no such evidence in this case. The defendant's blood pressure and pulse responded normally and there was no erratic heartbeat. In fact, Musto said that in this case, the test was 100% accurate.
Subsequent to the examination, Musto confronted the defendant with the results of the examination. Musto testified that defendant's response was that he did, in fact, have a gun in the lounge, which gun was given to him by Jerome Lockett. Upon questioning defendant about the three other relevant questions, defendant stated that he did not want to discuss the matter further.
Prior to trial, defendant's attorney moved to suppress the preceding statements on the ground that defendant stipulated to the polygraph examination only, and nothing subsequent thereto, and that the defendant's sixth amendment right to counsel had been violated. The trial court denied the motion.
During the trial, the State referred to the result of the polygraph in its opening statement and via the testimony of Musto. Defense counsel objected to the admission of the results of the polygraph and vigorously preserved the record. The court overruled the objection with the conditions that Musto appear in court and be subject to cross-examination, and that a limiting instruction as to the value of polygraph results be given.
Appellant contends that the jury should have been instructed on the crime of voluntary manslaughter, that the trial court erred in admitting the results of the stipulated polygraph examination, that the incriminating statement made after the examination was elicited in violation of his sixth amendment right to counsel, and that he was denied a fair trial in violation of his fifth amendment privilege against self incrimination by the State's introduction of the testimony of Musto that the defendant refused to answer certain questions subsequent to the polygraph examination. We address only the ...