         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 September 16, 2003 Session

                STATE OF TENNESSEE v. BENJAMIN DAMRON

               Appeal By Permission from the Circuit Court for Coffee County
                           No. 29542    John W. Rollins, Judge



                  No. M2003-00588-CCA-R9-CO - Filed December 29, 2003


This interlocutory appeal, brought by the State, seeks to answer whether a defendant’s statements
made during the third phase of a polygraph examination are admissible evidence. We conclude the
trial court correctly suppressed the defendant’s statements because the “post-instrument phase” of
the polygraph examination was an integral part of the examination process and not a separate and
discrete event. We affirm the judgment from the trial court.

                 Tenn. R. App. P. 9; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J.,
joined. DAVID G. HAYES, J., filed a dissenting opinion.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Charles M. Layne, District Attorney General; and Jason M. Ponder, Assistant District Attorney
General, for the appellant, State of Tennessee.

Robert S. Peters, Winchester, Tennessee, for the appellee, Benjamin Damron.

                                            OPINION

       This is an interlocutory appeal by the State, pursuant to Tennessee Rule of Appellate
Procedure 9. The State appeals the suppression of statements made by the defendant, Benjamin
Damron, on the date of the defendant’s voluntary polygraph examination. The polygraph
examination was administered on January 4, 1999, with the approval of the defendant’s then
attorney. The defendant was indicted on January 11, 1999, for rape of a child, in contravention of
Tennessee Code Annotated section 39-13-522.

        On the day of and before the polygraph examination, the defendant’s former attorney and the
District Attorney General had a brief phone conversation concerning the examination. Both
individuals testified at the suppression hearing. The defendant’s attorney stated his sole purpose in
allowing his client to be examined was with the hope he would pass the test and avoid a criminal
prosecution. The defendant’s attorney did not discuss the details of questioning with the District
Attorney General but testified there was a “tacit, absolute understanding” there were to be no
questions asked beyond the test itself.

        The District Attorney General testified that he confirmed to the defendant’s attorney that no
results of the test would be admitted into evidence, but no commitment was made as to statements
made outside the actual taking of the test.

        The defendant was unaccompanied by his attorney at the examination. Prior to the
questioning, the defendant signed a “Consent to Polygraph Examination” and a Miranda warning
titled “Tennessee Bureau of Investigation Warnings as to Constitutional Rights”.

        The polygraph examination was administered by a Tennessee Bureau of Investigation agent
whose report was submitted into evidence. The pertinent part, with the victim’s name excised, is
as follows:
        Detective Tildon Stubblefield, Tullahoma Police Department, Tullahoma, TN.,
        requested a polygraph of DAMRON in connection with an on-going criminal
        investigation. The investigation has revealed that DAMRON was the manager of the
        Fun-Tunnel game room at the Northgate Mall, Tullahoma TN. [The victim] states
        that she frequented the Fun-Tunnel and met DAMRON. [The victim] states that on
        08/29/98 [the defendant]1 took her into the office area and they engaged in
        consensual sexual intercourse. DAMRON has been interviewed and denied he ever
        took [the victim] into the office area or that he had sexual intercourse with her.
        DAMRON, through his legal counsel, agreed to undergo polygraph testing to prove
        his innocence.

       Beginning at 10:00 AM on 01/04/99, DAMRON was administered a polygraph
       examination at the Tullahoma City Hall, Tullahoma, TN.

       During the pre-instrument phase of the polygraph examination, DAMRON waived
       his right to legal counsel and provided written evidence he was undergoing the
       polygraph examination voluntarily. DAMRON made no statements contrary to those
       previously made by him.

       Based on the polygraph examination, it was concluded that DAMRON was
       practicing deception when answering the relevant questions. The relevant questions
       utilized during this polygraph examination were the following:

       Q: Did you have sex with [the victim]?
       A: No.
       Q: Did you have sexual intercourse with [the victim] at the Fun-Tunnel?


       1
           The victim’s name appears here in the report as an obvious typographical error.

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       A: No.
       Q: Did you touch [the victim] with your penis?
       A: No.

       During the post-instrument phase of the polygraph examination DAMRON was
       advised of the results and initially continued to deny having sexual intercourse with
       [the victim]. DAMRON made the statement that if he admitted to such activity, he
       would lose his job with the National Guard, and that he would lose his part time job
       as a police officer. Also, when I stated that [the victim] had not said she had been
       forced to engage in the sexual intercourse, DAMRON said “she was not forced”.
       DAMRON departed the office to meet with his legal counsel.

       The examination was terminated at 12:45 PM, on 01/04/99.

        The suppression hearing consisted entirely of testimony by the defendant’s former attorney
and the District Attorney General, the polygraph examination report, and arguments of counsel. At
the conclusion, the trial court held as follows:
        Well, it looks to me like to a great extent, this is a case of first impression in
        Tennessee. General, I think you are right. I think it boils down, and the essence of
        it is, what was the agreement between defense counsel and the attorney general? I
        think it’s generally understood, and I don’t know if I can take judicial knowledge of
        it, the results of any polygraph test in Tennessee are not admissible for any purpose
        in court. Can you distinguish the results of the test from the process of the test? I
        don’t know the answer to that, but I don’t think General Layne misled Mr. Fraley,
        and I don’t think Mr. Fraley misled General Layne, but what I do think here is there
        was a lack of communication about what was expected and what the results might be,
        and I don’t think that there was a clear understanding about exactly what was going
        to transpire. Where does that leave us? Frankly, I think it leaves us at the point
        where I don’t think that those responses under the circumstances are admissible. I
        agree with your argument about the Sixth Amendment. It was not custodial. I think
        you are right about that, and my brothers and sisters who grade my papers may have
        a different attitude about it if this gets to Nashville, but I’m going to rule it is
        inadmissible.

                                              Analysis

        The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this Court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The prevailing party is entitled to the strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, the application of the law
to the facts found by the trial court are questions of law that this Court reviews de novo. State v.
Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). Absent a showing by the appellant that the evidence


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preponderates against the judgment of the trial court, this Court must defer to the ruling of the trial
court. State v. Cribbs, 967 S.W.2d 773, 795 (Tenn.1998).

        Due to a lack of scientific consensus of the reliability of polygraph evidence, most states
maintain per se rules excluding the results. United States v. Scheffer, 523 U.S. 303, 310-11, 118 S.
Ct. 1261, 1265-66, 140 L. Ed. 413 (1998). The precedent in Tennessee is longstanding regarding
polygraph results being inherently unreliable and, thus, inadmissible. See State v. Hartman, 42
S.W.3d 44, 60 (Tenn. 2001); Grant v. State, 213 Tenn. 440, 443, 374 S.W.2d 391, 392 (1964); Irick
v. State, 973 S.W.2d 643, 652-53 (Tenn. Crim. App. 1998); State v. Campbell, 904 S.W.2d 608, 614
(Tenn. Crim. App. 1995); State v. Adkins, 710 S.W.2d 525, 529 n.17 (Tenn. Crim. App. 1985). The
ban on admissibility is not limited to the test results, but extends to the circumstances surrounding
the taking or not taking a polygraph examination. Hembree v. State, 546 S.W.2d 235, 240 (Tenn.
Crim. App. 1976); Grant, 213 Tenn. at 443, 374 S.W.2d at 392.

        As noted before, the suppression hearing was devoted almost entirely to the issue of the
agreement, or lack thereof, of the ground rules concerning the polygraph examination by the
respective attorneys. The trial court could not discern a meeting of the minds but did consider the
examination as a continuous process. Based on the authorities cited above, the results of the
polygraph examination would be inadmissible regardless of the expectations of the respective
attorneys. The trial judge’s findings can be fairly read to mean that he considered the inculpatory
statements as a part of the test and thus ruled them inadmissible. We agree.

      The polygraph examiner did not testify at the suppression hearing, but the report he prepared
was admitted into evidence. From the report we discern there are three phases to a polygraph
examination: the pre-instrument phase, the instrument phase, and the post-instrument phase.

       The report indicates that the examination began at 10:00 a.m. During the “pre-instrument
phase,” the defendant signed a Warnings as to Constitutional Rights waiver at 10:08 a.m. The
Consent to Polygraph Examination was signed by the defendant at 10:12 a.m.

        During the instrument phase, the defendant answered three questions posed by the examiner
that the examiner deemed relevant. In his answers, the defendant denied any improper contact with
the victim.

        The inculpatory statements were made during what the examiner referred to as the “post-
instrument phase of the polygraph examination.” There is no verbatim transcript of this phase, but
from the examiner’s report, it appears that the statements made by the defendant were in response
to statements by the examiner. The report then states, “The examination was terminated at 12:45
p.m., on 1/04/99.” The examiner’s report indicates that the polygraph examination consisted of three
phases and that any statements made by the defendant were during the third phase of the
examination.




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       Both the State and the defendant rely on State v. Greer, 666 N.W.2d 518 (Wis. Ct. App.
2003), in support of their positions. The Court therein examines the factors determining
admissibility of statements made after a polygraph examination. The Court reasons that for
admissibility, the post-exam statement must be a separate and discrete event from the examination
although no time separation is required. However, the core factors are whether the test is over and
whether the defendant was so told. Id. at 522. (emphasis added)

        After careful review, we conclude that the trial court correctly suppressed the statements
made by the defendant. In this instance there was no separation as to mark a discrete event, other
than possibly the disconnection from the machine, of the machine phase from the post-instrument
phase which caused the defendant to make the inculpatory statements. It was one event and,
therefore, part of the polygraph examination itself.

       Accordingly, we affirm the judgment from the trial court.




                                                      ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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