Opinion
Court of Appeals No. A-10576 Trial Court No. 3AN-07-9824 Cr No. 5804
02-15-2012
ROGER D. COPELAND SR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
In Leonard v. State, 655 P.2d 766, 770-71 (Alaska App. 1982), this Court held that a jury should not hear evidence of a person's willingness or unwillingness to submit to a polygraph examination. In the current appeal, we are asked to revisit that decision.
Roger D. Copeland Sr. was convicted of second- and third-degree sexual abuse of a minor, based on evidence that he engaged in sexual penetration and sexual contact with K.H., a fourteen-year-old girl whom he had hired to clean his house. At Copeland's trial, his attorney sought to introduce evidence that, when the police interviewed Copeland about these allegations, he agreed to submit to a polygraph examination. The trial judge refused to allow this evidence, and Copeland now claims that this ruling was error.
AS 11.41.436(a)(1) and AS 11.41.438(a), respectively.
Copeland argues that his willingness to take a polygraph exam was relevant to two issues at his trial. First, Copeland contends that this evidence was needed to explain the investigative strategy adopted by the police during the interview — in particular, to show how this strategy might have led Copeland to make statements that were apparently self-incriminating, even though he was not really guilty. Second, Copeland contends that his willingness to take a polygraph exam was relevant to prove his state of mind — specifically, his belief that he was innocent.
For the reasons explained in this opinion, we conclude that Copeland's first proposed rationale is a potential exception to the rule of exclusion we adopted in Leonard, but the facts of Copeland's case do not fit within this rationale for admitting the evidence. We further conclude that Copeland's second proposed rationale for admitting the evidence is fundamentally inconsistent with Leonard and is invalid. Accordingly, we uphold Copeland's convictions.
Underlying facts: Copeland's police interview
On August 27, 2007, fourteen-year-old K.H. reported that Copeland had sexually assaulted her while she was cleaning his house. According to K.H., Copeland grabbed her from behind, forced his hand down her pants, inserted his finger in her vagina, and touched her breast.
Later that same day, Copeland was interviewed by the Anchorage police concerning these allegations. This interview, which lasted more than two hours, was conducted by Detective Sergeant Cynthia Stanton.
Copeland initially told Stanton that nothing sexual had occurred between him and K.H.. But after Stanton told Copeland that the police were going to take DNA swabs from him, Copeland changed his story and claimed that K.H. had aggressively initiated sexual contact with him — that K.H. "[had done] a lot of stuff to [him] that [he did not] appreciate". Specifically, Copeland claimed that K.H. had taken hold of his hand and had forced his hand down her pants. Copeland told Stanton that, when K.H. did this to him, his finger probably entered her vagina.
After Copeland offered this account of events, Stanton asked him how he thought he would do on a polygraph examination if he were asked to repeat these statements. Copeland answered that he would pass the test. Stanton then asked Copeland whether he would be willing to take a polygraph exam. Copeland did not answer this question directly; instead, he told Stanton that he would like to see what the polygraph looked like before making a decision. Stanton then gave Copeland a brief outline of the polygraph examination procedure.
A short while later, Stanton explained that the police might also have K.H. submit to a polygraph examination, and then she again asked Copeland whether he was willing to take a polygraph exam. Copeland expressed hesitancy to take the test; he asked Stanton, "Don't them things lie?" Stanton replied that the polygraph did not lie — that it accurately recorded a person's reactions. Copeland then asked what would happen if he chose to decline the polygraph exam. Stanton replied that the choice was Copeland's, but that the case would turn on whose story was credible. Less than a minute later, Copeland stated that he was willing to take a polygraph exam.
Detective Stanton left the interview room for a few minutes, and when she came back she told Copeland that her supervisor was trying to get in touch with a polygraph operator. The interview continued for another half an hour, with Stanton questioning Copeland about what happened, and confronting Copeland with K.H.'s version of events. Stanton repeatedly expressed doubts about the veracity of Copeland's story, but she offered him an "out" — suggesting that he simply made a mistake, by engaging in conduct that was out of character for him.
Shortly thereafter, Copeland told Stanton that he had a "mental problem", and that he did "stupid stuff" if he did not take his medications. Copeland stated that if his hand went down K.H.'s pants, he did not force his hand into her pants. Copeland told Stanton that the interaction between him and K.H. occurred "so fast" that "[he didn't] know ... what really happened." Copeland then added that he had not taken his medications that day.
During this latter portion of the interview, Copeland made statements to the effect that he did not think that he had sexually abused K.H., but if he had done so, he was sorry, and he would be going to jail. Copeland also agreed with Stanton's suggestion that, while Copeland would not normally touch a fourteen-year-old girl, he "might succumb to something like that" if he was "stressed out" or "upset", and if he was not taking his medications.
In the end, no polygraph operator ever arrived to administer a test to Copeland.
Underlying facts: the litigation of this issue in the superior court
Although the State presented evidence that Copeland sexually assaulted K.H., the charges against Copeland did not actually require the State to prove that the sexual conduct took place without K.H.'s consent. An adult commits sexual abuse of a minor by engaging in sexual penetration or sexual contact with a minor even if the minor consents. Thus, at trial, Copeland relied on the second version of events that he told to Detective Stanton: he conceded that sexual penetration and sexual contact occurred between himself and K.H., but he contended that this penetration and contact occurred against his will — as a result of K.H.'s grabbing his hand and forcing his hand inside her pants.
See AS 11.41.434(a), 11.41.436(a), 11.41.438(a), and 11.41.440(a).
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During the trial, the State sought to introduce a redacted version of Copeland's police interview, without the references to Copeland's willingness to take a polygraph examination. Copeland's attorney objected to the State's proposed redaction. He argued that the jurors needed to hear Stanton's and Copeland's discussion of the polygraph so that they could judge whether this discussion might have overborne Copeland's will, leading Copeland to falsely make self-incriminating statements indicating that he knowingly engaged in sexual penetration and sexual contact with K.H. (i.e., that the sexual penetration and the sexual contact did not occur against Copeland's will).
To evaluate the parties' contentions, the trial judge — Superior Court Judge Philip R. Volland — reviewed the video recording of the entire two-and-a-half hour interview. Based on his review of the video, Judge Volland rejected the defense attorney's contention that the jurors needed to hear the discussion of the polygraph if they were to understand Detective Stanton's interview technique, and how her mention of the polygraph might have prompted Copeland to start changing his story.
Judge Volland concluded that Copeland had not suddenly altered his version of events in response to the discussion of a potential polygraph exam. Rather, the judge found that Copeland's story was slowly and gradually "evolving" throughout the entire interview, both before the polygraph was mentioned and afterwards. Judge Volland further concluded that the jurors would be able to fully understand and assess the impact of Stanton's interview techniques without hearing the portions of the interview that referred to the polygraph.
Judge Volland also noted that this was not a situation where the police told Copeland that his version of events, and his alone, was in question. Rather, Detective Stanton told Copeland that the police were interested in administering polygraph examinations both to him and to K.H..
Finally, Judge Volland acknowledged this Court's decision in Leonard v. State, 655 P.2d 766 (Alaska App. 1982), where we held that a jury should normally not hear evidence of a person's willingness or unwillingness to submit to a polygraph. The danger, according to Leonard, is that this evidence "could ... lull the jury into a false sense of security" concerning the credibility of that person's testimony, thus resulting in the jurors' "failing to carefully scrutinize [conflicts in the trial] testimony". Id. at 770-71.
Ultimately, Judge Volland excluded the references to the polygraph under Alaska Evidence Rule 403. The judge concluded that this evidence had little probative value, and he further concluded that the jurors would be misled, or their consideration of the case would be prejudiced, if they heard that Copeland had agreed to take a polygraph examination — because the jurors would likely (and improperly) infer that this was evidence of Copeland's innocence.
Accordingly, Judge Volland redacted those portions of the interview (approximately 15 minutes of the interview).
Did the jury need to hear Stanton and Copeland's discussion of a potential polygraph examination in order to understand the context of Copeland's self-incriminatory statements, or in order to assess Copeland's state of mind?
As we have explained, Copeland argues that Judge Volland should have allowed him to introduce evidence of his willingness to take a polygraph examination for two reasons. Copeland first argues that this evidence was necessary so that the jurors could understand the investigative strategy adopted by Detective Stanton during her interview with Copeland, and how the detective's strategy might have led Copeland to make statements that were apparently self-incriminating, even though he was not really guilty. Copeland next argues that this evidence was needed so that the jurors could assess his "state of mind" — by which Copeland is referring to his asserted belief in his own innocence.
With regard to Copeland's first rationale for admitting this evidence, there is judicial authority for the proposition that, even though the law normally prohibits evidence of a person's polygraph examination results, and evidence of a person's willingness or unwillingness to submit to a polygraph, there are times when the jurors should hear evidence concerning these topics because the evidence is crucial to understanding the circumstances that led to the defendant's confession.
Thus, in Rogers v. Commonwealth, 86 S.W.3d 29 (Ky. 2002), the Kentucky Supreme Court held that the jury should have been apprised that the defendant, who was a mentally retarded youth, made his confession after being told — falsely — that he had failed a polygraph exam. Id. at 37-40. The Illinois Supreme Court reached a similar decision in People v. Melock, 599 N.E.2d 941, 956-960 (Ill. 1992).
The courts in Rogers and Melock engaged in what was essentially a weighing process: they gauged the probative value of the polygraph evidence (its potential for explaining why the defendant might have falsely confessed to a crime) against its widely recognized potential for unfair prejudice. In both instances, the courts concluded that, on balance, the jurors needed to hear the evidence.
But unless evidence relating to a polygraph examination (or a potential polygraph examination) is truly necessary to explain the context of the defendant's statements to the police, the general rule continues to apply: jurors should not be told about a polygraph examination, or the defendant's willingness or unwillingness to take a polygraph examination, even though these subjects came up during the defendant's police interview.
For example, in Cropley v. State, Alaska App. Memorandum Opinion No. 3949 (December 30, 1998), 1998 WL 906309, the police falsely told the defendant, who was suspected of sexually abusing a minor, that the victim had taken and passed a polygraph exam. Id. at *4. (No polygraph exam had been given.) The trial judge excluded evidence of this interaction between Cropley and the police. Ibid.
On appeal, Cropley argued that the jury needed to hear this evidence in order to understand the pressure that he felt during his police interview, and why this pressure might have led him to make inconsistent and inaccurate statements during the interview. This Court concluded that the facts of Cropley's case simply did not support this rationale:
Cropley never contended that [the victim] was lying [about the sexual contact]. He ... contended [instead] that any sexual contact [between himself and the victim] was anIbid. Given these circumstances, and given the always-present danger that polygraph evidence will mislead or confuse a jury, we held that Cropley's trial judge did not abuse his discretion when he excluded this evidence. Ibid.
accident. Therefore, whether [the victim] passed a polygraph or not was immaterial to his explanation.
See also People v. Muniz, 190 P.3d 774, 787 (Colo. App. 2008); State v. Watling, 211 S.W.3d 202, 207 (Mo. App. 2007); State v. Britson, 636 P.2d 628, 632 (Ariz. 1981); Rollins v. State, 208 S.W.3d 215, 216-18 (Ark. 2005); State v. Burnham, 427 A.2d 969, 971-72 (Me. 1981); and State v. Edwards, 600 P.2d 566, 568 (Wash. App. 1979).
We reach the same result in Copeland's case. The record supports Judge Volland's conclusion that Stanton and Copeland's discussion of a potential polygraph examination did not significantly alter the tone or the content of the interview. Detective Stanton communicated her skepticism of Copeland's story long before the subject of a polygraph examination came up, and she continued to express her doubts afterwards. Similarly, Copeland began to alter his account of events long before the subject of a polygraph exam came up, and he continued to alter his story afterwards.
In short, Judge Volland could reasonably conclude that Stanton and Copeland's discussion of a potential polygraph exam was not a defining event of the police interview, and that Copeland would be able to effectively cross-examine Stanton about her interviewing strategy, and the effect that this strategy might have had on Copeland, without mentioning the offer of a polygraph exam. Judge Volland could also reasonably conclude that, whatever slight probative value this polygraph evidence might have on this issue, it was outweighed by the danger of confusion and unfair prejudice posed by the evidence.
Turning now to Copeland's second rationale for admitting the evidence (as proof of his "state of mind"), we conclude that this rationale is fundamentally inconsistent with the rule we adopted in Leonard.
Copeland concedes that, under Leonard, evidence of a person's willingness or unwillingness to take a polygraph examination is inadmissible. But Copeland argues that his case is different because, during his discussion of the polygraph with Detective Stanton, after Copeland expressed doubts about taking the examination because of his fear that polygraph machines might "lie", Stanton assured him that a polygraph machine does not "lie" (in the sense that the machine accurately reports the physical reactions of the test subject). Based on Stanton's remark, Copeland argues that his willingness to take a polygraph examination had special probative force, because a police officer expressly told him that the results of the test would be accurate.
It is impossible for us, as an appellate court, to ascertain why Copeland told Stanton that he was willing to take a polygraph examination. It may be, as Copeland claims, that he stated he was willing to take the exam because he wished to demonstrate his innocence and he was assured by Stanton that the results of the exam would be accurate. Alternatively, Copeland may have stated that he was willing to take the exam because Stanton was openly skeptical of Copeland's version of events, and Copeland thought that he might be able to "beat" the polygraph. Or Copeland may have told Stanton that he was willing to take the exam, not because he was truly willing to take the exam, but rather in order to allay Stanton's suspicions, since it appeared (from Stanton's statements during the interview) that the police were going to ask K.H. to take a polygraph exam as well. As our supreme court remarked in Lewis v. State, 469 P.2d 689, 693 (Alaska 1970), "[a person's] mere willingness to submit to a polygraph examination does not evidence [the person's] innocence, because there are [so] many ... possible explanations which would account for it."
Under the supreme court's decision in Lewis and this Court's decision in Leonard, Alaska law prohibits evidence of a defendant's (or a victim's) willingness to take a polygraph examination when that evidence is offered for the purpose of suggesting that only a truthful person would be willing to take the exam, and therefore the defendant (or the victim) is likely to be telling the truth.
Neither the Lewis decision nor the Leonard decision suggests that the application of this rule somehow depends on the strength of the person's belief in the accuracy of polygraph examinations. We therefore conclude that even if we viewed the circumstances of this case in the light most favorable to Copeland — in other words, even if we assumed for purposes of argument that Copeland agreed to take the polygraph exam because of his faith in the accuracy of the polygraph machine — evidence of Copeland's willingness to take the exam would still be inadmissible.
Conclusion
For the reasons explained here, we conclude that Judge Volland did not abuse his discretion under Alaska Evidence Rule 403 when he excluded the small portion of Copeland's police interview where the potential polygraph exam was discussed. This conclusion also answers Copeland's arguments that the exclusion of this evidence violated his constitutional rights. Because Judge Volland's ruling was a proper exercise of discretion under Evidence Rule 403, this ruling did not abridge Copeland's right to present evidence or his right to confront his accusers. See Edwards v. State, 158 P.3d 847, 852 (Alaska App. 2007); Larson v. State, 656 P.2d 571, 574-75 (Alaska App. 1982).
The judgement of the superior court is AFFIRMED.