Appeal from the Circuit Court of Brown County; the Hon. David
K. Slocum, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
This is an interlocutory appeal brought by the State pursuant to Supreme Court Rule 604(a)(1) (87 Ill.2d R. 604(a)(1)) from an order entered on November 28, 1983, by the circuit court of Brown County suppressing evidence of defendant John Eickhoff's refusal to take a polygraph examination and of his response to the investigator's request that he do so. We affirm.
On May 27, 1983, defendant was indicted on four counts of arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1), a Class 2 felony, for knowingly damaging by fire his real property, a farrowing house and a hog confinement building, and committing the offense with the intent to defraud the insurer thereof. Defendant's motion in limine sought to preclude the State from presenting any evidence to the jury of a colloquy between defendant and agent A.W. Benton, as reported in Benton's police report of February 3, 1983:
"EICKHOFF was then asked, if necessary, would he submit to a polygraph examination. EICKHOFF responded he would have to consult with his attorney.
R/A [Agent Benton] explained that [he] understood that EICKHOFF may not want to submit because of his pending civil matter and [Benton] inquired what might be EICKHOFF'S personal feelings or reasons for not submitting to the examination. EICKHOFF replied he could not answer that while in the current place, then stated he could not submit because of his ill feelings toward [Benton].
[Benton] stated that [he] understood EICKHOFF'S opinion, and explained that was not a reason to deny a polygraph examination. [Benton] further stated to EICKHOFF that R/A felt there were only two (2) reasons EICKHOFF would not submit and explained that (a) EICKHOFF was guilty or (b) EICKHOFF did not trust the examination.
EICKHOFF, in response to the above, stated he would not take the polygraph examination because of both reasons. EICKHOFF, after some hesitation, then stated he would not take it for only one of the reasons (b) he did not trust the machine."
The trial judge considered defendant's response to be an admission. The court granted the motion in limine, reasoning that, as both the results of a polygraph test and the fact that one had been given are inadmissible under Illinois law, a defendant's refusal to take a polygraph test was likewise inadmissible.
On appeal the State maintains that the trial court erred in granting the motion because the restriction on the admissibility of polygraph test evidence, as enunciated by our supreme court in People v. Baynes (1981), 88 Ill.2d 225, 430 N.E.2d 1070, is inapplicable to the case at bar. First, the State contends that the strictures of section 8b of "An Act to revise the law in relation to criminal jurisprudence" (Ill. Rev. Stat. 1981, ch. 38, par. 155-11), that in the course of any criminal trial the court shall not require, request, or suggest that defendant submit to a polygraph test, are inapplicable since nothing in the record suggests that the trial court ever approached the defendant about a polygraph examination. Second, the State stresses that under Baynes only the results of polygraph examinations are unreliable and that statements by defendants to police or polygraph examiners before or after polygraph examinations are admissible, citing People v. Petty (1977), 54 Ill. App.3d 1044, 370 N.E.2d 553, People v. McCue (1977), 48 Ill. App.3d 41, 362 N.E.2d 760, and People v. Reed (1972), 8 Ill. App.3d 977, 290 N.E.2d 612. The State argues that it did not intend to admit any evidence concerning the results of a polygraph examination, as one was never administered to defendant. Rather, the State intended to offer the defendant's statement as an admission of guilt. Third, the State urges that in Baynes, the court disallowed polygraph evidence because the machine was considered unreliable, rather than because such statements might prejudice the defendant before the trier of fact. The State suggests that it is mere coincidence that defendant's statement came in response to its offer of a polygraph test, and as this response was relevant and probative, the fact that it may prejudice him is insufficient to preclude its admission. See People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840.
We disagree. In People v. Williams (1978), 60 Ill. App.3d 529, 377 N.E.2d 367, this court held that a reviewing court will not reverse a trial court's allowance or denial of a motion in limine unless, in entering the order, the court manifestly abused its discretion. We conclude that that standard has not been met in this case.
At the outset, we note that in Petty, McCue, and Reed, cited by the State, the admissions or statements the defendants sought to suppress were easily separable from the fact that a polygraph examination had been given in McCue and Reed the admissions followed termination of the examination and in Petty the admissions occurred both before and after the examination. See, e.g., People v. Monet (1979), 90 Mich. App. 553, 282 N.W.2d 391.
In Baynes, our supreme court joined other jurisdictions by holding polygraph evidence inadmissible even in the face of a written stipulation. People v. Baynes (1981), 88 Ill.2d 225, 240, 430 N.E.2d 1070, 1077, and cases cited therein. See also Conley v. Commonwealth (Ky. 1964), 382 S.W.2d 865; Akonom v. State (1978), 40 Md. App. 676, 394 A.2d 1213; State v. Biddle (Mo. 1980), 599 S.W.2d 182, 187 & nn. 6-8; State v. LaForest (1965), 106 N.H. 159, 207 A.2d 429; State v. Trimble (1961), 68 N.M. 406, 362 P.2d 788; and State v. Frazier (W. Va. 1979), 252 S.E.2d 39.
Our supreme court commented on Baynes in People v. Yarbrough (1982), 93 Ill.2d 421, 444 N.E.2d 493, concerning a trial judge's suggestion of a polygraph test after a defendant's conviction by jury:
"The guidance provided by People v. Baynes is controlling in this case. There the defendant was given a new trial not because the evidence was close but rather because we regarded the use of polygraph evidence as rising to the level of plain error. We explained the new trial we granted by saying that the error in admitting polygraph evidence, even pursuant to a stipulation of the parties, `infringes upon the integrity of our judicial system.' Our renunciation of polygraph evidence in order `to protect and preserve the integrity and reputation of the judicial process' is as relevant to its use in connection with disposition of post-trial motions as to its use during the actual trial. Our emphatic and unequivocal conclusion in Baynes that polygraph evidence is not reliable enough to be given consideration in any manner applies to its use by any participant in the trial process, whether it be by the trial judge in passing upon post-trial motions or by the finder of fact, be it judge or jury. It would be anomalous for this court to hold ...