and Submitted: August 8, 2018
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
Appellant Quentin M. Rhoades (argued), Rhoades, Siefert &
Erickson, P.L.L.C., Missoula, Montana
Appellee Timothy C. Fox, Montana Attorney General, Micheal S.
Wellenstein (argued), Assistant Attorney General, Helena,
Montana, William E. Fulbright, Ravalli County Attorney,
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?
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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.
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.
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
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
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.
1. Did the District Court abuse its discretion in
excluding the defendant's polygraph
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).
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
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.
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.
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
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. 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, ¶¶
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
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
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 ...