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State v. Walker

Supreme Court of Montana

December 19, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
RANDALL BRYCE WALKER, Defendant and Appellant.

          Argued and Submitted: August 8, 2018

          APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC-15-69 Honorable Jeffrey H. Langton, Presiding Judge

          For Appellant Quentin M. Rhoades (argued), Rhoades, Siefert & Erickson, P.L.L.C., Missoula, Montana

          For Appellee Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein (argued), Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Hamilton, Montana

          Laurie McKinnon Justice

         ¶1 A jury found Randall Bryce Walker (Walker) guilty of two counts of incest and two counts of sexual assault. The Twenty-First Judicial District Court, Ravalli County, sentenced Walker to four, 100-year concurrent prison sentences, with no time suspended. Walker appeals, presenting three evidentiary issues for our review:

1. Did the District Court abuse its discretion in excluding the defendant's polygraph evidence?
2. Did the District Court abuse its discretion in excluding a defense expert's testimony that the defendant's psychosexual profile revealed no sexual interest in children?
3. Did the District Court correctly apply Montana's Rape Shield Law, § 45-5-511(2), MCA, to exclude evidence of a victim's alleged prior sexual conduct?

         ¶2 We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Walker married A.W.'s mother, Kim, when A.W. was an infant. A.W. later disclosed that, when she lived with Walker, he subjected her to a series of sexual assaults, beginning when she was seven or eight years old and ending when she was twelve or thirteen years old. She testified at trial that Walker frequently and regularly sexually assaulted her. Walker and Kim divorced in 2007. The next year, Walker married Laura. Laura's two daughters, B.W. and R.W., lived with Walker and Laura. Walker and R.W. did not have a good relationship. R.W. testified that Walker constantly made her uncomfortable by doing things like smacking and grabbing her bottom and trying to kiss her on the lips.

         ¶4 R.W. and B.W. both participated in competitive archery. A tournament took place near their home on February 14, 2015. At that time, R.W. was eleven years old. Early that morning, around 6:00 a.m., Laura and B.W. left to help set up the tournament, leaving Walker and R.W. alone at home. R.W. and Walker planned to meet B.W. and Laura at the tournament. Walker and R.W. each testified at trial, recounting different versions of what occurred that morning.

         ¶5 R.W. testified that, after she woke up, she went to Walker and Laura's bedroom, where Walker was lying in bed. R.W. crawled into the bed on the side where her mother usually slept. She testified that she did so because she wanted to wake up a little bit before she got ready for the tournament, but thought she would fall back asleep if she stayed in her own bed. R.W. then explained, in detail, how Walker initiated sexual contact with her. Walker, on the other hand, testified that R.W. made sexual advances at him and that, as soon as he realized what was happening, he jumped out of the bed. R.W. and Walker went to the archery tournament later that morning.

         ¶6 The State charged Walker with two counts of felony incest and two counts of felony sexual assault based on Walker's ongoing conduct towards A.W. when she was his step-daughter and Walker's conduct towards R.W. on February 14, 2015, when she was his step-daughter. Walker denied all charges and maintained his innocence.

         ¶7 In preparing his defense, Walker voluntarily underwent a psychosexual evaluation with Dr. Robert Page (Dr. Page). Walker sought to have Dr. Page testify at trial as to the results of his psychosexual evaluation. Walker made an offer of proof, representing to the District Court that Dr. Page would testify that "Walker's [psychosexual] profile is that he is not sexually interested in school-age males or females, or preschool age males or females" and that Walker showed "no signs of psychopathology or personality pathology." Dr. Page would further testify that he had no therapeutic recommendations for Walker.

         ¶8 Walker also voluntarily took a polygraph test with Dick Stotts (Stotts). Stotts examined Walker pursuant to the American Polygraph Association's standard polygraph procedure. During the polygraph test, Stotts asked Walker whether he ever had sexual contact with underage children generally or with R.W. particularly. Walker denied having any such contact. Stotts subsequently issued a report, in which he indicated that Walker's "polygrams did not contain specific reactions to the relevant questions, indicating no attempt at deception." Stotts further concluded, "After careful analysis of [Walker's] polygrams, it is the opinion of the examiner that [Walker] told the truth during his examination." Walker planned to have Stotts testify about the polygraph test's results at his trial.

         ¶9 The State filed pre-trial motions to exclude Dr. Page's and Stotts's testimony. The District Court accepted briefing on the issues and ultimately granted the State's motions. Walker's case proceeded to a jury trial in August 2016. At trial, Walker planned to have Stacy Wood (Wood) testify about alleged past sexual contact between victim R.W. and a three-year-old. Walker represented that Wood planned to testify about a time when she found eight-year-old R.W. in bed with the three-year-old, allegedly engaging in sexual conduct initiated by R.W. The State asked the District Court to exclude Wood's testimony pursuant to Montana's Rape Shield Law, § 45-5-511(2), MCA. The District Court heard the parties' arguments and subsequently granted the State's motion to exclude Wood's testimony.

         ¶10 After five days of trial, the jury found Walker guilty on all four counts. The District Court sentenced Walker to four, 100-year concurrent prison sentences, with no time suspended. Walker appeals, arguing that the District Court improperly excluded Dr. Page's, Stotts's, and Wood's testimony.

         STANDARD OF REVIEW

         ¶11 District courts have broad discretion in determining the relevance and admissibility of evidence. State v. Daffin, 2017 MT 76, ¶ 12, 387 Mont. 154');">387 Mont. 154, 392 P.3d 150. Thus, we review evidentiary rulings for an abuse of discretion. State v. Madplume, 2017 MT 40, ¶ 19, 386 Mont. 368, 390 P.3d 142. A court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Spottedbear, 2016 MT 243, ¶ 9, 385 Mont. 68, 380 P.3d 810. In exercising its discretion, however, a district court is bound by the Rules of Evidence and applicable statutes. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. Consequently, to the extent the court's ruling is based on its interpretation of an evidentiary rule or statute, our review is de novo. Derbyshire, ¶ 19.

         DISCUSSION

         ¶12 1. Did the District Court abuse its discretion in excluding the defendant's polygraph evidence?

         ¶13 Walker included polygraph examiner Stotts on his list of potential trial witnesses and provided the State with a copy of Stotts's polygraph report. The State filed a pretrial motion, seeking to exclude Stotts as a trial witness and prohibit any reference to the polygraph examination by any attorney, party, or witness. The State based its motion on a line of precedent from this Court excluding polygraph evidence from all court proceedings. See, e.g., State v. Hameline, 2008 MT 241, ¶ 20, 344 Mont. 461, 188 P.3d 1052; State v. Anderson, 1999 MT 58, ¶ 12, 293 Mont. 472, 977 P.2d 315; State v. Staat, 248 Mont. 291, 293, 811 P.2d 1261, 1262 (1991).

         ¶14 Walker opposed the State's motion but did not mention Stotts's testimony or the precedent upon which the State relied. Instead, Walker asserted that his offer to take the polygraph examination was admissible. Walker stated, "If Walker testifies, he will seek to offer the fact he volunteered to take the polygraph test as evidence relevant to his state of mind - more specifically, evidence relevant to his consciousness of innocence." (Emphasis added.) Walker further argued that, because the jury would know that he offered to take the polygraph examination, it would also need to know the examination's results. He urged the District Court to consider the interaction of M. R. Evid. 403, 404, 608, and 702 in deciding whether the polygraph examination's results should be admitted. Walker asserted that each side should "present evidence concerning the general science of polygraph evidence" to assist the court in determining whether the results were admissible under M. R. Evid. 702. Walker further stated that, if the State impeached his testimony, he would use the polygraph examination results to corroborate his truthfulness.

         ¶15 The District Court granted the State's pretrial motion to exclude Stotts's testimony and prohibit any attorney, party, or witness from referencing the polygraph examination. In its order, the court recognized the disparity between what the State requested and what Walker argued: "Walker fails to address, or even acknowledge, the Montana Supreme Court's bright line prohibition of polygraph evidence . . . . Instead, he contends the issue of the admissibility of an offer to take a polygraph test has not yet been addressed by the Montana Supreme Court." (Emphasis in original.) The District Court found Walker's argument unpersuasive in view of this Court's precedent clearly prohibiting polygraph evidence. Walker appeals the District Court's decision, arguing it should have admitted the polygraph evidence pursuant to M. R. Evid. 702.

         ¶16 We begin our analysis by noting that there are two distinct types of polygraph evidence at issue here. The first type involves the admissibility of Walker's polygraph test results through Stotts's expert testimony pursuant to M. R. Evid. 702. The second type of evidence concerns Walker's offer to take the polygraph test, which does not involve expert testimony or implicate considerations of M. R. Evid. 702. In his argument to the District Court, Walker argued that his offer itself should be admissible, but we do not discern a similar argument on appeal. Walker only mentions his offer in passing, urging us to "consider" the fact that he "willingly submitted" to the polygraph test. Accordingly, our decision only addresses the argument Walker raises on appeal-admissibility of polygraph test results pursuant to M. R. Evid. 702. We do not consider Walker's ancillary argument concerning the admissibility of his offer to take a polygraph test, which would involve evidentiary considerations other than M. R. Evid. 702.

         ¶17 Walker urges us to depart from our precedent holding that polygraph test results are inadmissible and apply, instead, general standards for admitting expert opinion evidence. The analysis of whether to admit or exclude expert testimony begins with M. R. Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Our jurisprudence recognizes that expert evidence is admissible if the expert field is reliable, the expert is qualified, and the testimony will assist the trier of fact to understand the evidence or determine a fact in issue. McClue v. Safeco Ins. Co., 2015 MT 222, ¶¶ 21-23, 380 Mont. 204, 354 P.3d 604; M. R. Evid. 702. Walker asks us to reconsider the scientific reliability of polygraph testing.

         ¶18 This Court has long held that polygraph test results are inadmissible in all Montana court proceedings. See, e.g., Hameline, ¶ 20 ("We repeat yet again our blanket prohibition on the use of polygraph test results in any way in any Montana court proceeding."); State v. DuBray, 2003 MT 255, ¶ 105, 317 Mont. 377, 77 P.3d 247.[1] The prohibition on polygraph test results extends to a defendant's sentencing. See, e.g., Anderson, ¶ 12; State v. Hensley, 250 Mont. 478, 482-83, 821 P.2d 1029, 1032 (1991). Even the indirect admission of polygraph test results is prohibited. Anderson, ¶ 12 (stating that "any evidence which would otherwise be admissible may be rendered inadmissible where a polygraph is used in the production of or for the purpose of influencing the outcome of such evidence"); In re N.V., 2004 MT 80, ¶ 20, 320 Mont. 442, 87 P.3d 510 (emphasizing that "polygraph results, even if indirectly presented to a district court, are inadmissible"); State v. Craig, 262 Mont. 240, 242-43, 864 P.2d 1240, 1242-43 (1993). The only instances in which we permit polygraph testing is when a court imposes therapeutic polygraph testing as a probation condition. See, e.g., State v. Smart, 2009 MT 1, ¶ 12, 348 Mont. 274, 201 P.3d 123; State v. Heddings, 2008 MT 402, ¶ 20, 347 Mont. 169, 198 P.3d 242; Hameline, ¶¶ 19-20.

         ¶19 While frequently premised upon a determination that polygraph examinations are unreliable, this strict prohibition also stems from a concern that polygraph test results invade the province of the fact-finder by improperly commenting on a witness's or defendant's credibility. State v. Bashor, 188 Mont. 397, 414-16, 614 P.2d 470, 480-81 (1980) (citing United States v. Alexander, 526 F.2d 161, 168-69 (8th Cir. 1975)). In Bashor, we held that when a polygraphist testifies about polygraph test results, that person directly comments on "the determinative factor as to the guilt or innocence of a defendant in a jury-tried case." Bashor, 188 Mont. at 414, 614 P.2d at 480 (quoting Alexander, 526 F.2d at 168). That testimony "deprive[s] the defendant of the common sense and collective judgment of his peers, derived after weighing facts and considering the credibility of witnesses, which has been the hallmark of the jury tradition." Bashor, 188 Mont. at 414, 614 P.2d at 480 (quoting Alexander, 526 F.2d at 168). In Alexander, the Eighth Circuit Court of Appeals explained:

The most important function served by a jury is in bringing its accumulated experience to bear upon witnesses testifying before it, in order to distinguish truth from falsity. Such a process is of enormous complexity, and involves an almost infinite number of variable factors. It is the basic premise of the jury system that twelve men and women can harmonize those variables and decide, with the aid of examination and cross-examination, the truthfulness of a witness. But a [polygraph] machine cannot be examined or cross-examined; . . . [The court is] not prepared to rule that the jury system is as yet outmoded. [The court prefers] the collective judgment of twelve men and women who have sat through many weeks of a trial and heard all the evidence on the guilt or innocence of a defendant.

Alexander, 526 F.2d at 168-69 (quoting United States v. Stromberg, 179 F.Supp. 278, 280 (S.D.N.Y. 1959)); see also United States v. DeBetham, 348 F.Supp. 1377, 1390-91 (S.D. Cal.), aff'd, 470 F.2d 1367 (9th Cir. 1972). In many ways, an "aura of infallibility" accompanies polygraph test results, which "can lead jurors to abandon their duty to assess credibility and guilt" and, instead, rely on the examiner's expert opinion. United States v. Scheffer, 523 U.S. 303, 314, 118 S.Ct. 1261, 1267 (1998). Consistent with this reasoning, "[t]he only acceptable lie detection methods in Montana court proceedings reside with the court in bench trials, the ...


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