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

                 STATE OF TENNESSEE v. BENJAMIN DAMRON

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



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




DAVID G. HAYES, J., dissenting

       I am unable to join with my colleagues in concluding that the defendant's inculpatory
statement must be suppressed. The trial court ruled that the defendant's statement was inadmissible
upon grounds that there was no "clear understanding [between the district attorney and defense
counsel] about exactly what was going to transpire." The majority opines, on the other hand, that
the questions which followed the polygraph examination were "one event and, therefore, part of the
polygraph examination itself."

       The proper test, I believe, is whether the defendant's statement under the circumstances was
voluntary, "that is, [it] must not [have been] extracted by any sort of threats or violence, nor obtained
by any direct or implied promises, however slight, nor by the exertion of any improper influence."
U.S. v. Black Spotted Horse, 120 F. Supp. 2d 802, 806 (D.S.D. 2000) (holding statements of
defendant made during a post-polygraph interview by authorities were admissible) (citing Bram v.
United States, 168 U.S. 532, 542-43, 18 S. Ct. 183, 187 (1897)). In the absence of deception,
coercion, or overreaching conduct by the State, I find the defendant's incriminatory statement
voluntary and, thus, admissible.

        As noted by the majority, prior to submitting to the polygraph examination, the defendant
waived his Fifth Amendment right to remain silent. In addition, the defendant signed a document
entitled "Consent to Polygraph Examination," which provided in pertinent part:

        I understand that I am voluntarily consenting to this polygraph examination; that I
        have the right to refuse to take the examination; that I have the right to refuse to
        answer any questions; that I have the right to consult with an attorney before taking
        the examination; that any statements I make may be used against me in court; and
        that I may terminate the examination at any time. All test questions will be reviewed
        with me before the examination.
       I understand that after review of the examination, I will be advised of the results and,
       if necessary allowed to explain any questionable responses which were evident.

I find nothing confusing as to what the defendant was told would happen and what, in fact,
happened. As explained in the document, upon completion of the polygraph examination, the
defendant was disconnected from the machine and advised of the results, which indicated deception.
Afterwards, the defendant explained to the polygraph examiner that "[the victim] was not forced."
I find nothing in the examiner's report, which is the only proof before us, suggesting that this
statement was anything other than voluntary. "Indeed, far from being prohibited by the Constitution,
admissions of guilt by wrongdoers, if not coerced, are inherently desirable." Oregon v. Elstad, 470
U.S. 298, 305, 105 S. Ct. 1285, 1291 (1985). "Very few people give incriminating statements in the
absence of official action of some kind." Schneckloth v. Bustamonte, 412 U. S. 218, 224, 93 S. Ct.
2041, 2046 (1973). Moreover, as a general rule, courts have held that the mere fact that the accused
confessed to a particular crime in anticipation of or following a polygraph examination does not per
se render the confession inadmissible in evidence. E.g., Wyrick v. Fields, 459 U.S. 42, 47-49, 103
S. Ct. 394, 396-97 (1982) (voluntary confession given during post-polygraph interview was
admissible and did not violate the defendant’s fifth amendment right to counsel); Rupe v. Wood, 93
F.3d 1434, 1444 (9th Cir. 1996) (the defendant’s will was not overborne by the polygraph examiner
so as to render the defendant’s subsequent confession involuntary, where, after the defendant
voluntarily submitted to polygraph, the examiner told the defendant that he appeared to have failed
the exam and that the defendant would be better off if he cooperated with the examiner rather that
having the examiner report the examination results to investigating police officers); Barrera v.
Young, 794 F.2d 1264, 1269-72 (7th Cir. 1986) (confession by the defendant in response to questions
of the examiner prior to the administration of a third polygraph was not involuntary, where the
defendant and his counsel waived the defendant’s Miranda rights in relation to the test and were
aware that questioning by the examiner would precede the actual test); United States v. Beckwith,
22 F. Supp. 2d 1270, 1285-86 (D. Utah 1998) (informing the defendant of the results of a polygraph
exam does not constitute misconduct or overreaching sufficient to raise an issue of an involuntary
confession); Powell v. Commonwealth, 944 S.W.2d 1, 3 (Ky. Ct. App. 1997) (where the defendant
initiated the contact with the examiner, did not request any restrictions upon questioning, and waived
her right to counsel, confession during post-interview phase was admissible); State v. Morton, 715
A.2d 228, 261-62 (N.J. 1998) (subjecting the defendant to polygraph tests did not impugn the
voluntariness of his confession, where interrogating officers advised the defendant of his right to
refuse to take the test, to discontinue the test, and to refuse to answer any question during the test).

        For the above reasons, I would permit introduction of the defendant's inculpatory statement.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE


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