Having considered the totality of the circumstances in the present case, we conclude that Mr. Stacy’s waiver was invalid inasmuch as the post-test interrogation was so wholly unrelated to either the administration of the test itself or the interpretation of the results that it was beyond his contemplation at the time the waivers were executed.
State v. Stacy
2024 – Ohio – 4539
Eleventh District Appellate Court
Ashtabula County, Ohio
September 16, 2024
Mr. Stewart Stacy Appeals his Convictions of Multiple Counts of Rape on Young Girls
Defendant-appellant, Stewart G. Stacy, appeals his convictions and sentence for multiple counts of Rape and Gross Sexual Imposition. For the following reasons, we reverse Mr. Stacy’s convictions and remand this matter for further proceedings consistent with this Opinion.
Indicted
On August 21, 2019, the Ashtabula County Grand Jury indicted Mr. Stacy along with two co-defendants on six counts of Rape and two counts of Gross Sexual Imposition.
Superseding Indictment
On October 30, 2019, a Superseding Indictment was returned. With respect to victim L.O., Mr. Stacy was charged with Rape (Counts One, Two, Three, Four, Five, Six), felonies of the first degree in violation of R.C. 2907.02(A)(1)(b) and 2971.03(A)(2), with the specification that he purposely compelled the victim to submit by force or threat of force and that he is a sexually violent predator pursuant to R.C. 2941.148(A)(1)(b); and Gross Sexual Imposition (Counts Seven and Eight), felonies of the third degree in violation of R.C. 2907.05(A)(4) and (C)(2). With respect to N.G., Mr. Stacy was charged with Rape (Counts Nine, Ten, Eleven, Twelve, Thirteen, Fourteen), felonies of the first degree in violation of R.C. 2907.02(A)(1)(b) and 2971.03(A)(2), with the specification that he purposely compelled the victim to submit by force or threat of force and that he is a sexually violent predator pursuant to R.C. 2941.148(A)(1)(b); and Gross Sexual Imposition (Counts Fifteen and Sixteen), felonies of the third degree in violation of R.C. 2907.05(A)(4) and (C)(2). Additionally, Mr. Stacy was charged with Endangering Children (Count Seventeen), a felony of the third degree in violation of R.C. 2919.22(A) and (E)(2)(c), and Endangering Children (Count Eighteen), a felony of the second degree in violation of R.C. 2919.22(B) and (E)(4).
Victim N.G. is Developmentally Disabled
Jenelle Schafer (Anne) Morales testified that N.G. currently lives with her and her family. N.G. is diagnosed borderline developmentally disabled and with neurofibromatosis, which causes learning disabilities. She functions at the age of a seven- or eight-year-old.
Mr. Stacy’s Horrific Sexual Abuse is Described
N.G. (born August 17, 2008 and age 14 at trial) testified that she and her siblings (L.O., D.R., and R.O.) went to live with their grandmother (Roberta or Robin) and “grandpa” (Roberta’s boyfriend Mr. Stacy). An uncle (Danny) and Danny’s girlfriend also lived with them. Grandmother and R.O. slept on the first floor. She, L.O., D.R., and Mr. Stacy slept on the second floor. Danny and his girlfriend slept in the basement. One night, when other people were staying on the first floor, N.G. was sleeping in Mr. Stacy’s bed and “he reached his hand down [her] pants.” She awoke as Mr. Stacy was taking her clothes off. He was naked and touching her “front part” with his “front part.” He told her “not to tell.” She pretended to go to the bathroom but walked into his closet by mistake. The next morning she told grandmother.
On another occasion, she and L.O. were sleeping in their room when Mr. Stacy carried them one at a time into his room. He began to touch them as he had on the previous night. He told them not to tell or he would hurt them.
This usually happened at night, but sometimes in the morning. Sometimes grandmother would be at home and sometimes she would not be. Mr. Stacy locked the bedroom door when the abuse occurred. Mr. Stacy also touched her “back” or “bottom” with either his hands or his front part. “Sometimes he would take his front and then pull up and down on it, and then he would put his finger on it and then put his finger inside me.” When he touched her bottom, “it stayed outside.” At different times, Mr. Stacy would do similar things to L.O.’s bottom. N.G. saw Mr. Stacy do this and L.O. told her that he did it.
“Clearish white stuff” sometimes came out of Mr. Stacy’s “front private.” He would put the stuff inside or outside her using either his finger or his private. When he did things, it would feel “weird,” or “uncomfortable,” and sometimes “hurt.” One time, her “front” was bleeding. N.G. saw Mr. Stacy do similar things to L.O.
N.G. described occasions when Mr. Stacy used children’s toys to penetrate her and L.O.
N.G. testified that Mr. Stacy would pull her legs apart if she tried to keep them shut. And if she tried to scream, he covered her mouth. When she asked him to stop, he said no.
On another occasion, Mr. Stacy licked N.G.’s front part while they were in the basement. Mr. Stacy did the same thing to L.O. and told them not to tell. N.G. told grandmother “a lot, but she wouldn’t listen.”
Before living with grandmother and Mr. Stacy, N.G. and her siblings lived with their parents in a house on Woodman where bad things also happened. N.G. believed she was at grandmother and Mr. Stacy’s house for one or two years.
L.O. (born September 13, 2010, and age 12 at trial) testified that she used to live with N.G., her grandmother (Roberta) and her boyfriend (Mr. Stacy). She shared a room with N.G. Mr. Stacy would do things that L.O. did not like by touching her front area and her back area. These things happened in Mr. Stacy’s room and N.G. was there when he did them. He would carry her and N.G. to his bedroom. He would touch her front area with his front area. He touched her back area with his hands “both” inside and outside and it felt “very bad.” It also hurt when he touched her front part. “Mostly” what she remembered was Mr. Stacy putting toys inside her. He threatened her not to tell anyone. He did the same things to N.G. as well.
Mr. Stacy Went to Conneaut Police to Report False Accusations
Detective Jesse Lardi was a patrolman with the Conneaut Police Department on February 7, 2017. On that date, Mr. Stacy came to the police department to report false accusations being made against him by his girlfriend (Roberta) that he was sexually assaulting his grandchildren. Lardi took an informative report (as no allegations had yet been reported) which he forwarded to the Detective Bureau and Children Services.
Deputy John Helfer was a patrolman with the Conneaut Police Department in 2017. On June 26, 2017, Helfer was dispatched to 557 State Street where he spoke with Roberta Obhof and N.G. Helfer advised Obhof to have the child examined medically and forwarded his report of the incident to the detectives.
Forensic Exam by Sexual Assault Nurse
Kathleen Hacket is the Forensic Nurse Program Coordinator and Pediatric Sexual Assault Nurse at UH Rainbow Babies and Children’s Hospital. On June 26, 2017, Nurse Hacket took a medical assault history from N.G. (age eight) for an incident occurring two nights earlier. Mr. Stacy brought N.G. and L.O. to his bedroom. N.G. reported Mr. Stacy digitally penetrating her both vaginally and anally. N.G. also indicated being penetrated with his penis and ejaculation. Nurse Hacket conducted a physical examination of N.G. noting redness throughout the vaginal area (labia majora and minora, perineum, and hymen) and a tear in the posterior fourchette. Nurse Hacket then conducted a similar examination of L.O. (age six) who indicated digital vaginal and anal penetration, penile vaginal, anal, and oral penetration, and ejaculation. The physical examination revealed an anal abrasion and tearing, and redness on the labia minora. She testified that redness could be a “non- specific” indicator with respect to abuse but that tears and abrasions are caused by blunt force and are indicative of abuse.
Nurse Practitioner Interview
Monique Malmer testified that she is a nurse practitioner for Akron Children’s Hospital at the Child Advocacy Center. On February 5, 2018, following an interview conducted by Courtney Wilson, Malmer medically examined N.G. regarding sexual abuse involving their stepfather, Douglas Obhof. Malmer’s conclusion was that the results of the assessment were “highly concerning for sexual abuse.” Mr. Stacy was not mentioned in the interview on February 5. N.G. was seen again at the Child Advocacy Center twice in 2019. According to Malmer’s information, there were four forensic examinations of the children, two for N.G. and two for L.O.
Caseworker Testimony
Michelle Flick testified that, in June 2017, she was an assessment caseworker for the Ashtabula County Children Services Board when she was assigned to N.G., L.O., and their siblings. At this time, N.G. and L.O. were placed with an aunt and uncle where their other siblings were already staying. She conducted forensic interviews with N.G. and L.O. on June 29, 2017, following their examinations at Rainbow Babies and Children’s Hospital.
After this initial involvement, Caseworker Flick again became involved with N.G. and L.O. in December 2017 because of disclosures that the girls had been abused by other people in addition to Mr. Stacy. This resulted in the examinations at the Child Advocacy Center in March 2018.
Polygraph Examination of Mr. Stacy
Trooper Jack Reno of the Ohio State Highway Patrol testified that he works in the polygraph department. On January 24, 2020, he conducted a polygraph examination of Mr. Stacy. The recorded examination was played before the jury. Reno questioned Mr. Stacy as to whether he inserted any part of his penis into N.G.’s or L.O.’s vaginas, whether any part of his penis touched N.G.’s or L.O.’s vaginas, and whether any part of his penis penetrated N.G.’s or L.O.’s vaginas. Mr. Stacy denied the foregoing and the results of the polygraph for all responses were “deception indicated.” When interrogated by Reno following the exam, Mr. Stacy admitted that he “had sex with the children,” but claimed it happened in the living room and that there was no penetration.
BCI Tested the Rape Kits
Hallie Dreyer testified that she was a forensic scientist within the DNA unit at the Ohio Bureau of Criminal Investigation until 2020. She testified regarding the results of rape test kits belonging to N.G. and L.O. From a sample taken from L.O.’s underwear, male DNA was detected but was insufficient for comparison. From anal swabs taken from N.G and from her underwear, male DNA was detected. N.G.’s anal swab produced a single male DNA profile sufficient for comparison. The profile was consistent with that of Douglas Obhof but Mr. Stacy was excluded as a possible source of that DNA.
Defense Testimony
Carli Wojtowicz Gerics works as a dispatcher for the Conneaut Police Department. She testified regarding the call on February 7, 2017, when Mr. Stacy reported to then Patrolman Lardi that Roberta was accusing him of molesting the children. She also testified to two calls on June 26, 2017. The first call, at 2:00 a.m., was from Mr. Stacy who reported that Roberta was coaching her granddaughter to say that he had touched her inappropriately. The second call came at 2:03 a.m. from Roberta who reported that Mr. Stacy had touched her eight-year-old granddaughter “the other day.” A third call on June 26 came at 11:56 a.m. Mr. Stacy reported that Roberta was “flipping out” and had threatened him with a knife.
Sister Lesley Bussey Testifies
Lesley Bussey testified that Mr. Stacy is her brother. She observed Mr. Stacy interact with Roberta’s four grandchildren while they lived in his house. The children required a lot of patience and understanding. N.G. had to be shown how to eat with a fork and spoon. The children also presented physical and emotional challenges. Mr. Stacy was very involved with the children and there were no complaints. Roberta was often absent and abused illegal substances.
Brother D.R. Testifies
D.R. (age 13 at trial) testified that, when he and his siblings lived with their parents on Woodland Avenue, his father was physically abusive. When they were sent to live with Roberta and Mr. Stacy life was “pretty good.” He had a bedroom upstairs where his sisters and Mr. Stacy also slept. He did not witness anything inappropriate between Mr. Stacy and his sisters.
Counselor Olivia Clokey Testifies
Olivia Clokey worked in direct services for New Beginnings Residential Treatment Center. Between December 2017 and April 2018, Counselor Clokey was N.G.’s individual counselor and her group therapist while N.G. was a resident there. Clokey testified that N.G. was admitted to New Beginnings “as a perpetrator of abuse on three of her younger siblings and one of her younger cousins.” Counselor Clokey also testified that N.G.’s background included extreme neglect by her mother and grandmother and an abusive stepfather. N.G. had a sleeping disorder. She had a “severe fear of nighttime” which is when she reported her abuse would occur. As a mandatory reporter, Counselor Clokey twice reported disclosures of sexual abuse by N.G., involving her stepfather and Mr. Stacy. Counselor Clokey testified that N.G. “was very clear about who did what [to her].”
Forensic Psychologist Sandra McPherson Testifies
Sandra B. McPherson, a clinical and forensic psychologist, reviewed the interviews of the children and found that the appropriate protocols for such interviews were only partially followed. She noted instances where an interviewer corrected a child, did not completely review the rules and ensure the child understood what was expected, and asked leading questions. With respect to N.G.’s first interview, Psychologist McPherson concluded “that the content of this interview would be consistent with having had experiences of a sexual nature that would be inappropriate and constitute abuse” and that “the handling of the questions and the responses as to detail really asked for much further elaboration in order to know more about what exactly had occurred with this child.” With respect to L.O.’s first interview, Psychologist McPherson concluded “this was not an interview that would allow one to come to final conclusions about details of events in this child’s life.”
Psychologist McPherson testified regarding N.G.’s second interview, “[s]he named other people, but then denied that the defendant had been part of that, or at least denied anyone else had done it I should say, and then indicated that she was threatened by one of the other people to keep quiet.” In L.O.’s second interview, “[s]he identifies multiple sources of abuse and the last of them is the defendant … [a]nd she indicates that she was spanked for saying that defendant had offended against her.” Psychologist McPherson impression of N.G. was that “she is the victim of extensive abuse, and that it has caused her to be severely, emotionally disturbed.” It was not Psychologist McPherson opinion that the girls had been coached in making their statements.
Guilty and Not Guilty
On April 3, 2023, the jury found Mr. Stacy guilty of Rape (Count One) and Gross Sexual Imposition (Counts Seven and Eight) with respect to L.O.; and guilty of Rape (Count Nine) and Gross Sexual Imposition (Counts Fifteen and Sixteen) with respect to N.G. Mr. Stacy was acquitted of the remaining charges.
On April 6, 2023, the trial court entered a Judgment Entry “determin[ing] beyond a reasonable doubt, pursuant to R.C. 2971.01(H)(1) and (2)(f), that Stewart G. Mr. Stacy is a Sexually Violent Predator.”
Life Imprisonment
On April 10, 2023, the trial court issued its Judgment of Conviction memorializing Mr. Stacy’s sentence. The court sentenced Mr. Stacy to life imprisonment for the Rape Counts One and Nine and sixty months in prison for the Gross Sexual Imposition Counts Seven, Eight, Fifteen and Sixteen. The two sentences for Rape were ordered to be served consecutively with each other and concurrently with the sentences for Gross Sexual Imposition.
Note: Mr. Stacy filed several appeals. The only appeal that will be evaluated in this article is the Miranda challenge following Mr. Stacy’s polygraph.
Polygraph Statements Admissibility Challenged
In the second assignment of error, Mr. Stacy challenges both the admission of the polygraph examination at trial and his statement at the conclusion of the examination wherein he admitted his guilt. Prior to trial, Mr. Stacy filed a Motion in Limine Regarding Polygraphic Examination of the Defendant, seeking “an Order prohibiting the introduction of the video recording of the Defendant’s Polygraph Examination conducted on the 24 day of January 2020 and any reports or testimony by Trooper Jack M. Reno of the Ohio State Highway Patrol.” The grounds for the Motion were the State’s purported breach of the parties’ Stipulation of Use of Polygraph Test and the violation of Mr. Stacy’s right to counsel and right against self-incrimination.
Trial Court Determines the Post-Polygraph Statements are Admissible
Following an evidentiary hearing, the trial court denied the Motion and found as follows:
The Court … finds that the defendant knowingly, intelligently, and voluntarily entered into the stipulation regarding use of the polygraph at trial, and during the pre-test interview, knowingly, intelligently, and voluntarily waived his various statutory and constitutional rights, including the right to counsel and the right to remain silent.
The Court further finds that the defendant did not invoke his right to counsel at any time during the polygraph examination itself or during the post-test interview/interrogation.
The Court further finds that the stipulation for use of this polygraph testing covers the entirety of the polygraph protocol, including the post-test interview/interrogation.
Although denominated a Motion in Limine, Mr. Stacy’s Motion was in effect a motion to suppress and treated as such by the trial court inasmuch as an evidentiary hearing was held. See Pirock v. Crain, 2020-Ohio-869, 152 N.E.3d 842, ¶ 72 (11th Dist.) (“a motion in limine … may be used as the equivalent of a motion to suppress evidence which is either not competent or improper because of some unusual circumstance”). Accordingly, we will apply the standard of review appropriate to motions to suppress. “Appellate review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “[A]n appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence,” but, “must then independently [i.e., de novo] determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.” Id. For the purposes of this assignment of error, there are no material facts in dispute inasmuch as the analysis relies on the video of the polygraph examination and the written stipulation. The focus will be on whether the facts satisfy the legal standard for a valid waiver.
Established Case Law on a Valid Miranda Waiver
The question of “whether a valid waiver of the right to counsel and the right to silence [has] occurred” depends on “whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances.” State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 107. “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 279, ¶ 7, quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.”. “The state bears the burden of proving by a preponderance of the evidence that the accused’s waiver of his Miranda rights was knowing, intelligent, and voluntary.” In re J.G., 2023-Ohio-4042, 228 N.E.3d 645, ¶ 31 (1st Dist.); State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 100.
Established Case Law – Polygraphs
The law regarding the admissibility of evidence from a polygraph examination beyond the results of the examination has been aptly stated by the Twelfth District Court of Appeals:
A polygraph examination “consists of three separate phases: the pre-test, the testing phase and the post-test.” State v. Ferris, 12th Dist. Warren No. CA88-05-042, 1989 Ohio App. LEXIS 195, *3 (Jan. 17, 1989). The pre-test phase consists of the examiner reading the examinee his constitutional rights and asking background information. Id. “During the testing phase, the examinee is hooked up to the machine while being questioned in order to determine whether or not he is telling the truth.” Id. The post-test phase immediately follows the testing phase and provides the examinee “an opportunity to offer any additional information concerning his particular test, and to state anything else that the examiner should be aware of, or any problems he had during the testing.” Id.
The parameters set out in Souel are inapplicable when the polygraph examiner testifies at trial without discussing polygraph results. State v. Azbell, 5th Dist. Fairfield No. 04CA11, 2005-Ohio- 1704, ¶ 198-200 (holding trial court did not abuse its discretion by permitting examiner to testify as to defendant’s statements made during the course of a polygraph examination without any mention of the examination or the results therefrom), citing State v. Spirko, 59 Ohio St.3d 1, 6 (1991); see also State v. Smith, 715 P.2d 1301, 1310 (Mont.1986) (differentiating between test results and statements, as test results involve the examiner’s evaluation of responses, while statements involve direct responses to questioning and not any credibility evaluations or impressions), citing Bashor v. Risley, 730 F.2d 1228, 1238 (9th Cir.1984).
Consistent with the Fifth District’s holding during the testing phase, the United States Supreme Court has held that statements during a “post-test interrogation” were admissible because the defendant had been properly Mirandized and voluntarily, knowingly, and intelligently waived his rights prior to the polygraph examination. Wyrick v. Fields, 459 U.S. 42, 48, (1982) (stating “[a]lthough the results of the polygraph examination might not have been admissible evidence, the statements [the defendant] made in response to questioning during the course of the polygraph examination surely would have been”). Likewise, the Ohio Supreme Court and this court have found that confessions made during “pre-test” and “post-test” interviews were admissible where the defendant was properly Mirandized and voluntarily, knowingly, and intelligently waived his rights prior to the polygraph examination. See, e.g., State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, ¶ 55-66; State v. Liso, 12th Dist. Brown No. CA2012-08-017, 2013- Ohio-4759, ¶ 10-18; State v. Menke, 12th Dist. Butler No. CA2002- 01-021, 2003-Ohio-77, ¶ 13-15. State v. Gibson, 12th Dist. Butler No. CA2016-06-107, 2017-Ohio-877, ¶ 24-26. Compare the hearing testimony of Trooper Reno: “Basically, a polygraph examination consists of, there’s a pre-test, there’s test data collection, test data analysis, and a post-test.”
Mr. Stacy was Read, Understood and Waived Miranda at the Inception of His Polygraph Interview
During the early stages of the testing procedure, Trooper Reno advised Mr. Stacy of his constitutional rights, including the right not to answer questions and have his attorney present. Mr. Stacy responded: “I don’t need my lawyer here to advise me ‘answer this question, don’t answer that question’. I am willing to answer all questions that are pertaining to my innocence … even if they are horrific nasty ugly questions I am willing to answer them.”
Mr. Stacy’s Attorney was Tardy
Mr. Stacy’s first argument under this assignment is that the trial court erred when it failed to find that he was denied contact with counsel during the polygraph examination. At the evidentiary hearing, counsel for Mr. Stacy, Mr. Malcomb S. Douglas, testified that he wished to speak with Mr. Stacy prior to the examination. The examination was scheduled for 1:00 p.m. at the BCI office in Youngstown, but Mr. Douglas did not arrive at the testing location until about 1:20 p.m. He called the Attorney General’s office while en route and said that he wanted to speak with Mr. Stacy prior to the beginning of the test. When he arrived at the testing location, Mr. Stacy had already been taken back to the examination room. Mr. Douglas asked to speak with Mr. Stacy several times, but was advised by the prosecutor that she did not have the ability to interrupt the test. Mr. Stacy was not told that Mr. Douglas was at the testing site and wished to speak with him.
Mr. Stacy Now Claims he did Not Understand that a Miranda Waiver was a Miranda Waiver
Mr. Stacy claimed that he did not understand that the Stipulation involved a waiver of his right to counsel and he believed that his attorney would be present for the examination. Mr. Stacy also claimed that he asked to speak to his attorney during the examination: once while being led to the examination room and again during a bathroom break. Mr. Stacy acknowledged that neither of these requests were recorded on video. Moreover, Mr. Stacy did not believe that by signing the Stipulation he was agreeing to be interrogated after the results of the examination were determined.
OSHP Lt. Brimah Testimony
Trooper Reno testified that Mr. Stacy never asked for counsel during the polygraph examination. Lieutenant Gamel Brimah, the polygraph commander for the Highway Patrol, testified that, when he brought Mr. Stacy out of the examination room, he said something about asking for his attorney. When Lt. Brimah challenged him and reminded him that the examination had been recorded, Mr. Stacy conceded that he had not asked for his attorney.
Eleventh District Appellate Court Determines Mr. Stacy Waived His Miranda Rights at the Beginning of the Polygraph and Did Not Request an Attorney During the Polygraph
We agree with the trial court that Mr. Stacy waived the right to have counsel present during the polygraph examination (leaving aside the question of whether the post- test interview/interrogation was part of the examination proper). This waiver was expressly contained in the written Stipulation signed by both Mr. Stacy and his counsel. Nor do we find that Mr. Stacy invoked his right to counsel at any time during the examination. On the video recording, Trooper Reno expressly reviewed Mr. Stacy’s right to counsel and Mr. Stacy affirmed that he did not need counsel to be present. Mr. Stacy’s claims to have requested counsel while being led to the examination room and during a bathroom break are not credible inasmuch as they are flatly contradicted or inconsistent with his statements and behavior during the recorded portion of the examination as well as the testimony of Trooper Reno and Lieutenant Brimah. However, this issue is not determinative of whether that waiver was valid during post-examination questioning.
Court Determines that a Second Miranda Warning is Required After a Polygraph Interview
Contrary to the conclusion of the trial court, we find that the facts of the present case do not satisfy the standard for a valid waiver of Mr. Stacy’s constitutional rights with respect to the post-test interrogation and, therefore, the post-test interrogation including Mr. Stacy’s admissions to having had sex with the girls should have been suppressed.
In the first instance, the post-test interview and/or interrogation cannot reasonably be construed as part of the polygraph test procedure and, therefore, was not covered by the stipulated waiver of rights. It is readily acknowledged that some amount of questioning after the results of the test have been determined is part of the polygraph protocol. Mr. Stacy’s trial counsel admitted that there is typically a pre-test and post-test interview in addition to the “actual test itself,” and the Stipulation itself provided that “[t]he examination process may involve a series of interviews and tests employing such device [known as a “lie detector” or polygraph].”The post-test interrogation in the present case, however, in no way resembled an “opportunity [for Mr. Stacy] to offer any additional information concerning his particular test, and to state anything else that the examiner should be aware of, or any problems he had during the testing” described by the Gibson court. Nor was this the sort of interview that would have been contemplated by either Mr. Stacy or his counsel when executing the Stipulation. After the results of the polygraph were delivered to Mr. Stacy, Trooper Reno harangued him for an hour for the sole purpose of obtaining a confession. Tpr. Reno urged Mr. Stacy to be a man and admit what he did to the girls. He argued that if Mr. Stacy really loved the girls he would confess to spare them from having to testify and begin to make their lives better. He reminded Mr. Stacy of eternity and guaranteed him the Lord’s protection if he would admit to and be sorry for what he had done. Throughout the interrogation, the accuracy of the test results and Mr. Stacy’s guilt were never questioned. When Mr. Stacy protested his innocence, Tpr. Reno responded that he was “not innocent” and that the girls were telling the truth. As interrogation this may be fine, but to maintain that such questioning is a normal part of the polygraph procedure is untenable. Nor is it tenable to believe that either Mr. Stacy or his counsel contemplated that such questioning would be encompassed by the Stipulation. In fact, both testified at hearing that they did not anticipate the interrogation that followed the examination.
Court Determines that a Totality of the Circumstances Excludes the Totality
Despite the finding that the post-test interrogation conducted by Trooper Reno was not encompassed by the terms of the Stipulation, it has been held that a waiver of Miranda rights prior to a polygraph examination remains effective during a period of post-test interrogation. In Wyrick v. Fields, 459 U.S. at 48, the United States Supreme Court held that the validity of the waiver in such circumstances depends upon the “totality of circumstances”:
If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be “interrogation.” In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. Id. at 46, quoting Edwards v. Arizona, 451 U.S. 477, 486, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), fn. 9; also id. at 48 (rejecting the per se rule “that, notwithstanding a voluntary, knowing, and intelligent waiver of the right to have counsel present at a polygraph examination, and notwithstanding clear evidence that the suspect understood that right and was aware of his power to stop questioning at any time or to speak to an attorney at any time, the police again must advise the suspect of his rights before questioning him at the same interrogation about the results of the polygraph”); United States v. Martinez, D.N.M. 21-CR-01934 MV, 2023 WL 8436166, *12 (“[c]ircuit courts have applied the Wyrick totality of the circumstances test to determine that a Miranda waiver secured prior to a polygraph test did not constitute a valid waiver of the right to counsel for purposes of a post-test custodial interrogation”).
Court Determines that Polygraphs Have Legal Segregation
Considering the totality of the circumstances, we conclude that the waiver of Miranda rights that preceded the testing procedure was not valid as to the subsequent interrogation. There is no indication in the record before this Court that either Mr. Stacy or his trial counsel understood the waiver to be any broader in its scope than necessary to perform the polygraph examination. Stated otherwise, the waiver was only executed for the purposes of administering the examination. Inasmuch as the interrogation following the test cannot be construed as part of the test or the interpretation of the results, it was beyond Mr. Stacy’s contemplation when he waived his Miranda rights. United States v. Leon- Delfis, 203 F.3d 103, 112 (1st Cir.2000) (“[i]t does not follow that León-Delfis waived his right to counsel for post-test questioning because he waived his right to pre-test and test questioning”); United States v. Vazquez, S.D.Florida No. 07-20141-CR, 2007 WL1655429, *4 (“defendant agreed to be questioned by [a federal agent] only in conjunction with a polygraph test and with no clear understanding or expectation, by either defendant or her attorney, that a post-examination interview would follow if defendant’s veracity was at issue”).
Court Infers a Miranda Waiver Can Expire in a Couple of Hours
The State maintains that, “[b]y signing the stipulated agreement, Appellant and his counsel acknowledged their understanding that there would be a post-test interview conducted without counsel present.” Brief of Appellee at 22. We disagree. As quoted above, the Stipulation provided that Mr. Stacy “knowingly, intelligently, and voluntarily waives his right to remain silent and his right to seek advice of counsel during any stage of the administration of the polygraph test procedure” and that “[t]he examination process may involve a series of interviews and tests employing [the polygraph] device.” This language in no way expressly or unambiguously advised Mr. Stacy that he would be subject to the hour-long interrogation following the test. The State may argue that the post-test interrogation was a stage of the administration of the polygraph test procedure, but the evidence does not support the claim. Trooper Reno testified that the Stipulation did not specifically reference a post-test interrogation and that he did not advise Mr. Stacy that, if he failed the test, he would be subject to interrogation. Reno did state that, when a person fails the test, an interview or interrogation is conducted “to resolve issues regarding the outcome of the test.” The interrogation to which Mr. Stacy was subject did not attempt to resolve issues regarding the test but was solely focused on securing Mr. Stacy’s confession to the charges. Reno’s attitude throughout was as follows: “The only thing I … could be wrong about is you [Mr. Stacy] not being the man I know you are that can stand up and say, ‘you know what, I made a mistake’ and admit those mistakes.” We further note that the interrogation took place after Mr. Stacy had been under examination for a period of about five and a half hours, the test itself employing the device had concluded, and the results delivered to Mr. Stacy.
Established Case Law on the Requirement for Two Miranda Warnings
There is nothing necessarily wrong with attempting to secure a confession from a suspect. The issue in the present case is that Mr. Stacy did not knowingly, intelligently, and voluntarily agree to be subject to the interrogation. Rather, the evidence is that Mr. Stacy only waived his rights for the purpose of the polygraph and that this particular post-test interrogation was not part of the polygraph procedure. Compare Leon-Delfis at 112 (finding the waiver of rights invalid where, inter alia,“[t]he waivers León-Delfis signed did not specifically mention the possibility of post-polygraph questioning, and Agent López failed to explain that post-polygraph questioning would occur”).
Again, it is acknowledged that some sort of post-test interview or interrogation is properly considered part of the polygraph examination process, whether “to resolve issues regarding the outcome of the test” or to provide an opportunity for the suspect “to offer any additional information concerning his particular test, and to state anything else that the examiner should be aware of, or any problems he had during the testing” as stated in Gibson. Reno’s interrogation of Mr. Stacy, however, was not of that character.
It is the nature of the post-test interrogation that distinguishes the present case from Wyrick, where the Supreme Court concluded that no additional warnings were required. In Wyrick, the post-test interrogation was described as follows: “At the conclusion of the polygraph examination, which took less than two hours, the CID agent told Fields that there had been some deceit, and asked him if he could explain why his answers were bothering him. Fields then admitted having intercourse with the victim on September 21, but said that she had instigated and consented to it.” Wyrick, 459 U.S. at 44, 103 S.Ct. 394, 74 L.Ed.2d 214. The court found that “it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result.” Id. at 47. Here, Mr. Stacy was not asked to explain the unfavorable results or what was bothering him. Rather, Trooper Reno impressed upon Mr. Stacy that, in light of the results, the only decent thing he could do as a man, for the sake of the girls as well as his own soul, was to admit to what he had done.
In this regard, the present case aligns more closely with Martinez, where the district court found that, “by signing the Advice of Rights form prior to the polygraph test, Mr. Martinez did not knowingly and intelligently relinquish his rights in connection with the post-test interview.” Martinez, 2023 WL 8436166, at *12. While not wholly identical to the present case, the post-test interview or interrogation in Martinez was of a similar character:
[W]hile Mr. Martinez had been advised that he was free to leave and could stop answering questions in the context of SA Coyle obtaining his consent to be interviewed with a polygraph test, no such advisements were offered when, three hours later, the polygraph test ended, and SA Coyle’s tone became accusatory. To the contrary, SA Coyle told him in no uncertain terms that he was not being honest with her and conveyed that because he did not “pass the test,” he had no choice but to continue answering her questions, stating: “[W]e need to talk about what happened to DeAnna. Okay? We need to talk about it.” Id. at *8.
The Supreme Court in Wyrick held that, by agreeing to undergo a polygraph examination, a defendant waives “his right to be free of interrogation about the crime of which he was suspected.” Wyrick at 47. Such waiver generally remains valid during the period of post-test questioning “unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a ‘knowing and intelligent relinquishment or abandonment’ of his rights.” In the present case, as in Martinez, the circumstances of the post-test interrogation had altered so dramatically as to render the waiver invalid as to this interrogation.
Court Reaffirms that a Totality of the Circumstances Excludes a Totality
The dissenting judge claims that, “instead of properly applying Wyrick, the majority fashions and applies its own per se rule.” Infra at ¶ 129. On the contrary, Wyrick instructs that, in the context of a polygraph examination, the validity of a waiver of the right to counsel as well as the right to remain silent depends on “the totality of the circumstances.” Having considered the totality of the circumstances in the present case, we conclude that Mr. Stacy’s waiver was invalid inasmuch as the post-test interrogation was so wholly unrelated to either the administration of the test itself or the interpretation of the results that it was beyond his contemplation at the time the waivers were executed. If the dissent believes otherwise, an argument should be made similarly based on the totality of the circumstances explaining how such post-test interrogation could reasonably be encompassed within, in the words of the stipulated waiver, “any stage of the administration of the polygraph test procedure.” If such an argument could be convincingly made, the waivers would be found valid.
The dissenting judge also claims that the “majority opinion, continuing a disturbing trend, … fashions its own factual findings” which “appear nowhere in the trial court record.” Infra at ¶ 133. On the contrary, the entire post-test interrogation was recorded and admitted into evidence both at the pretrial hearing and at trial itself. If the dissenting judge believes that the majority has misstated or mischaracterized the substance of the post-test interrogation, a counterargument should be made.
Finally, we disagree that the admission of Mr. Stacy’s confession (the remainder of the polygraph examination being admissible) was harmless error. Apart from the confession, the evidence against Mr. Stacy consists of the victims’ testimony. The physical evidence of abuse indicated a perpetrator other than Mr. Stacy. It cannot be presumed that his confession in these circumstances was without weight or effect.
Information for this article was obtained from State v. Stacy, 2024 – Ohio – 4539.
State v. Stacy, 2024 – Ohio – 4539 was issued by the Eleventh District Appellate Court on September 16, 2024 and is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.
Lessons Learned:
- Interrogation is to Obtain a Confession … a Surprise to the Eleventh District – The legal issue begins with the U.S. Supreme Court case Wyrick v. Fields, 459 U.S. 42 (1982) that held in pertinent part “The Court of Appeals misconstrued Edwards v. Arizona, 451 U.S. 477 , which establishes that where an accused, after invoking his right to counsel, initiates subsequent dialogue with the authorities, the question whether there was a valid waiver of the right to counsel as to any interrogation that occurs during such dialogue is controlled by the “totality of the circumstances,” including the fact that the accused initiated the dialogue. Here, respondent initiated not just a meeting with the authorities, but interrogation, by requesting the polygraph examination. Respondent validly waived his right to have counsel present at “post-test” questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was waiving his rights knowingly and voluntarily.”. In this case the Eleventh District determined that the posttest questioning were changed circumstances as it opined “After the results of the polygraph were delivered to Mr. Stacy, Trooper Reno harangued him for an hour for the sole purpose of obtaining a confession.” This analysis and conclusion by two of the three Eleventh District Court judges causes one to pause. Cleary EVERY. SINGLE. LAW ENFORCEMENT. INTERROGATION. occurs for the SOLE purpose of obtaining a confession! At any point Rapist Stacy could have requested an attorney but he chose not to. Additionally, any law enforcement interrogation could be considered a ‘harangue’ as the goal is to obtain a confession or incriminating evidence against a suspect. But ‘harangue’ is not the legal standard. The legal standard is a ‘knowingly, voluntarily and intelligent’ waiver as established in Miranda v. Arizona, 384 U.S. 436 (1966). Here, Rapist Stacy’s confession was obtained with a knowingly, voluntarily and an intelligent waiver.
- Judge Mary Jane Trapp – The Eleventh District Appellate Court quotes Wyrick v. Fields, 459 U.S. 42, (1982) that opposes their own analysis and conclusion when in paragraph #74 “it would have been unreasonable for Fields and his attorneys to assume that Fields would not be informed of the polygraph readings and asked to explain any unfavorable result.” at 47. The rational dissenting Judge Mary Jane Trapp scathingly states “The majority opinion, continuing a disturbing trend … fashions its own factual findings.”. Judge Trapp also accurately describes the misapplication of Wyrick v. Fields, 459 U.S. 42, (1982) “Here, instead of properly applying Wyrick, the majority fashions and applies its own per se rule. Specifically, the majority adopts the Twelfth Appellate District’s description of “the three separate phases of a polygraph exam,” i.e., “the pre-test, the testing phase and the post-test.””
- Eleventh District Appellate Court Polygraphs – I would recommend that any polygraph that occurs in the Eleventh District – Ohio Counties; Ashtabula, Geauga, Lake, Portage and Trumbull follow the holding in this case. Following the completion of a polygraph the polygraphist re-Mirandizes the suspect so that the post-polygraph interrogation is Eleventh District-proof. In the remaining eighty-three counties, polygraphists can follow the U.S. Supreme Court holding in Wyrick v. Fields, 459 U.S. 42, (1982) that specifically held “Here, respondent initiated not just a meeting with the authorities, but interrogation, by requesting the polygraph examination. Respondent validly waived his right to have counsel present at “post-test” questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was waiving his rights knowingly and voluntarily. To require new warnings merely because the examination had been discontinued and respondent was asked if he could explain the test’s unfavorable results, would be unreasonable.”.
- Late Arriving Attorney – Law enforcement has no duty to keep a suspect informed on the arrival of an attorney as the suspect must specifically and unequivocally request legal counsel. On March 10, 1986 the U.S. Supreme Court held “Because neither the letter nor purposes of Miranda require this additional handicap on otherwise permissible investigator efforts, we are unwilling to expand the Miranda rules to require the police to keep the suspect abreast of the status of his legal representation.”. Moran v. Burbine, 475 U.S. 412 (1986). Consequently, law enforcement had no duty to notify Rapist Stacy that his tardy attorney Mr. Malcomb S. Douglas was trying to contact him.
- Trooper Jack Reno – Ohio State Highway Patrol Trooper Jack Reno conducted a professional and Objectively Reasonable interrogation of Rapist Stacy. Perhaps the Supreme Court of Ohio will accept this case and overturn the Eleventh District Appellate Court’s decision and uphold Mr. Stacy’s voluntary confession to Tpr. Reno.
Does your agency train on Miranda?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!