COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73893/73894 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : ROSILIND COLLIER [73893] : OPINION REYNARD HAMMOND [73894] : : Defendants-Appellees : : PER CURIAM Date of Announcement of Decision: JULY 16, 1998 Character of Proceeding: Criminal appeals from Court of Common Pleas Case Nos. CR-343947 and CR-348404 Judgment: Reversed and remanded. Date of Journalization: Appearances: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DEBORAH NAIMAN, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee JOHN LUSKIN, ESQ. Rosilind Collier: 936 Terminal Tower Cleveland, Ohio 44113 (Continued on next page) For Defendant-Appellee EDWARD WADE, JR., ESQ. Reynard Hammond: 75 Public Square Bldg. Suite 1210 Cleveland, Ohio 44113 -3- PER CURIAM: This consolidated appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant State of Ohio appeals from the trial court's pre-trial ruling permitting the defendants-appellees Rosilind Collier and Reynard Hammond to introduce the results of Hammond's polygraph test in evidence under limited circumstances. The State has appealed pursuant to leave of this Court under R.C. 2945.67(A). For the reasons hereinafter stated, we reverse and remand. Defendant Reynard Hammond was indicted on multiple counts of forcible rape of Auntree Young, a child under the age of thirteen years, in violation of R.C. 2707.02. The State contended Hammond was guilty of aiding and abetting Rosilind Collier, the child's biological mother, who previously had been indicted on multiple counts for the same offense in CR-343947. The defendant Hammond was charged with striking or abusing the child to force her to perform cunnilingus on her mother, Rosalind Collier. The cases against Hammond and Collier were consolidated and were set for trial on July 28, 1997. During the course of jury selection, the court recessed for lunch break. During the break, defense counsel for defendant Hammond related to co-defendant's counsel, to the assistant county prosecutor and to the trial judge that he had just received, via a telephone message, information that the results of a polygraph test which Hammond had taken on July 25, 1997, were complete. According to counsel, Hammond had -4- passed the polygraph test relative to the allegations in the indictment. The prosecutor was not aware that arrangements for such a test were made. No stipulation relative to a polygraph test for either defendant had ever been entered into by the State and defense counsel nor had one been discussed. Following additional discussion between the parties, the trial court ordered counsel for both sides to brief the issue for oral argument, which was set for the following morning, July 29, 1997. The prospective jurors were dismissed for the day and court was recessed until the following morning. The following morning there was a lengthy discussion in chambers among defense counsel, the prosecutor and trial judge which included cursory review of both State and Federal law on the subject of admission of polygraph test results. On motion by the defense, the trial court granted a continuance. The parties subsequently submitted briefs respecting the use of polygraph test results in evidence. The matter was continued by the trial court to January 20, 1998, as not only the hearing date, but also the new trial date. A hearing was held the morning of January 20, 1998, limited to the testimony of witnesses which addressed the issues of polygraph examinations, reliability, acceptance in the scientific community and in law enforcement. Argument was not allowed relative to the procedures by which results of such a test are admissible under the -5- Rules of Evidence, case law and safeguards created to protect the integrity of court proceedings. William D. Evans, II, owner of Poly-Tech Associates, Inc., a polygraph testing firm based in Akron, testified on behalf of defendant Hammond as to his qualifications, methodology and the test he administered to defendant Hammond and the results thereof. The trial court granted defendant's motion for admission of the polygraph test results for a limited purpose: if defendant Hammond took the stand and if his character put in issue, Mr. Evans could testify not whether Hammond was telling the truth, but whether there was indicia of absence of deception in his answers to the polygraph questions. (Tr. 91, 100). The trial court relied on United States v. Scheffer (C.M.A. 1996), 44 M.J. 442, which held that the rule prohibiting polygraph evidence was unconstitutional as applied to a case in which the testifying accused offered (test results) to rebut an attack on his credibility. (Tr. 91, 101). On January 22, 1998, the State filed a motion for leave to appeal the polygraph issues to this Court, which was granted. The State's sole assignment of error states as follows: I. A TRIAL COURT COMMITS REVERSIBLE ERROR WHEN IT RULES ADMISSIBLE THE RESULTS OF A POLYGRAPH TEST WHICH HAS BEEN UNILATERALLY OBTAINED WITHOUT PRIOR KNOWLEDGE OR STIPULATION BY THE OPPOSING PARTY. Results of polygraph examinations are generally not admissible into evidence in Ohio. State v. Lytle (March 10, 1997), Ross App. No. 96CA2182, unreported, citing State v. Jackson (1991), 57 Ohio -6- St.3d 29, 37; State v. Jamison (1990), 49 Ohio St.3d 182, 190. This Court in State v. Malin (Aug. 26, 1993), Cuyahoga App. No. 65098, unreported at 5 stated: Polygraph tests are generally not admissible to establish guilt or innocence of an accused because the tests have not attained scientific or judicial acceptance as an accurate and reliable means of asserting truth or deception. Ohio law requires that when the polygraph is to be taken by the accused in a criminal case and intended to be used in trial, certain procedures must be followed prior to the test being administered. It is well established in the State of Ohio that polygraph examination results may only be admitted if both parties first jointly stipulate, in writing, to the defendant's submission to the test and to the subsequent admission at trial of the graphs and examiner's opinion. State v. Souel (1978), 53 Ohio St.2d 123. The holding in Souelhas been consistently followed in Ohio and has not been overturned. The Souel Court sets forth several conditions which must be followed before results of a polygraph may be admitted into evidence. These conditions are outlined in the syllabus of Souel, supra, as follows: The results of a polygraphic examination are admissible in evidence in a criminal trial for purposes of corroboration or impeachment, provided that the following conditions are observed: 1. The prosecuting attorney, defendant and his counsel must sign a written stipulation providing for defendant's submission to the test and for the subsequent admission at trial of the graphs and the examiner's opinion -7- thereon on behalf of either defendant or the state. 2. Notwithstanding the stipulation, the admissibility of the test results is subject to the discretion of the trial judge, and if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions he may refuse to accept such evidence. 3. If the graphs and examiner's opinion are offered in evidence the opposing party shall have the right to cross-examine the examiner respecting: a. the examiner's qualifications and training; b. the conditions under which the test was administered; c. the limitations of and possibilities for error in the technique of polygraphic interrogation; and d. at the discretion of the trial judge, any other matter deemed pertinent to the inquiry. 4. If such evidence is admitted the trial judge should instruct the jury to the effect that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged, and that it is for the jurors to determine what weight and effect such testimony should be given. Although polygraph examination results may be admitted for corroboration or impeachment, the parties must first jointly stipulate admissibility and follow certain explicit conditions. State v. Jackson, supra, at 37, citing State v. Souel, supra and State v. Levert, (1979), 58 Ohio St.2d 213. The trial court cannot admit the results of a polygraph test into evidence simply at an accused's request. State v. Levert (1979), 58 Ohio St.2d 213, 12 O.O.3d 204, 389 N.E.2d 848. -8- Such results are admissible only if both the prosecution and defense jointly stipulate that an accused will take a polygraph test and that the results will be admissible. State v. Souel(1978), 53 Ohio St.2d 123, 7 O.O.3d 207, 372 N.E.2d 1318. Jamison, supra, at 190. A more recent case, State v. Hesson (1996), 110 Ohio App.3d 845 at 857, states that Souel is the controlling law on the subject of admissibility of polygraph examination results. That court reiterated that such test results are admissible solely for purposes of corroboration or impeachment only if both parties stipulate to their admission. Hesson, supra, at 857. Defendant Hammond relies heavily upon United States v. Scheffer (C.M.A. 1996), 44 M.J. 442, which held that a per se exclusion of polygraph evidence offered by the accused to rebut an attack on his credibility is unconstitutional because it violates the accused's Sixth Amendment right to present a defense. The court found unconstitutional Military Rule of Evidence 707 which excluded from evidence 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. However, we note that Scheffer was reversed by the United States Supreme Court on March 31, 1998, 118 S.Ct. 1261. After an exhaustive review of the pertinent authorities including Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, the Court stated at 1266: The approach taken by the President in adopting Rule 707--excluding polygraph evidence in all military trials--is a rational -9- and proportional means of advancing the legitimate interest in barring unreliable evidence. Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence. The Supreme Court reversed the Court of Appeals and held that Military Rule 707's exclusion of polygraph tests does not unconstitutionally abridge the right to present a defense. Id. at 1269. Furthermore, the court in Souel held that the prosecuting attorney and the defense must stipulate in writing to the defendant's submission to the polygraph test and to the subsequent admission of the test at trial. In the instant case, no such stipulation was obtained. In fact, the prosecutor was informed on the day of trial during jury selection that the defense had just received the results of a polygraph test which defendant Hammond had taken three days earlier. The prosecutor was never informed that arrangements for such a test were being made or had been made. The day of trial was the first time the prosecutor had heard anything about a polygraph test. The record clearly reflects that the prosecutor never stipulated to the test or its admission. Given Ohio's long-standing proscription against the use of polygraph tests and in the absence of stipulation, we find no -10- unconstitutional limitation on defendant's right to present a defense through the exclusion of such unreliable material. Plaintiff's sole assignment of error is sustained. The trial court's order respecting the polygraph results is reversed and the case is remanded for further proceedings consistent with this opinion. -11- It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, PRESIDING JUDGE DIANE KARPINSKI, JUDGE LEO M. SPELLACY, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .