Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d. Sullivan, J.A.D. (concurring).
This unfortunately protracted appeal comes before us for final consideration after prior argument and completion of proceedings on remand ordered by this court November 8, 1963 after such argument for the purpose of giving the State an opportunity to rehabilitate by testimony the validity of certain searches and seizures apparently instrumental in obtaining the conviction of defendant on three of the four counts of breaking and entering and three of the four counts of larceny of the indictment tried. No question was raised at the original trial concerning illegality of search and seizure, as the case was tried prior to the decision in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961).
At the prior argument we considered, in addition to the search and seizure point, an attack upon the conviction by reason of testimonial references to a polygraph (lie-detector) test refused by defendant and to one taken by a State's witness. We now dispose of all points raised on both arguments.
Defendant was tried in April 1961 for breaking and entering and larceny involving ten different locations. He was acquitted of the charges in relation to six of the places but convicted on four counts of breaking and entering and four counts of larceny involving the other four locations, these being Airship Tavern, Manchester Township, about December 1, 1960; Alligator Inn, Jackson Township, about December 1, 1960; Warren Concrete Tank Co., Ocean Township, about December 26, 1960; and Bargain Center, Dover Township, about January 7, 1961; all being in Ocean County.
We first discuss the grounds of appeal concerning allusions to polygraph tests.
The main basis of the State's evidence against defendant, known as Gene Forest as well as by his true name of Parsons, was the testimony of one Edward Wilds who described
himself as an accomplice of Parsons in all of the thefts and gave detailed accounts of the execution of the crimes. Parsons' defense was a flat denial that he had participated in any of the episodes, claiming not to have been present on any of the occasions recounted by Wilds except for one where he admitted being in the vicinity but not a participant in the breaking. Wilds at first gave the police several statements exculpating Parsons of any connection with the crimes, but finally changed his story to involve the defendant. The State's position is that Wilds was motivated to finally tell the truth because, after giving the exculpatory statements, he was administered a polygraph test which showed he had been lying in such statements, and that when he was informed of the test result and therefore knew he could no longer credibly protect Parsons, he decided to make a clean breast of the whole matter. The manner of the State's development of these circumstances is the crux of this phase of the appeal, the Supreme Court having recently reaffirmed the long and well-nigh universally held view that the results of polygraph tests are inadmissible. State v. Driver , 38 N.J. 255, 262 (1962). The court there decided that a prosecutor's reference to a defendant's refusal to take such a test is plain error as possessing a "horrendous capacity for prejudice." See also State v. Walker , 37 N.J. 208, 214-217 (1962); State v. Arnwine , 67 N.J. Super. 483 (App. Div. 1961); State v. LaRocca , 81 N.J. Super. 40 (App. Div. 1963).
So far as appears from the transcript furnished us, the first reference to the lie-detector test taken by Wilds occurred during the direct examination of that witness by the State. He was first examined concerning certain silver dollars stolen from the Bargain Center which he and Parsons were trying to exchange at a bank when first apprehended, and he testified they belonged to Parsons, implying they were Parsons' partial share of the fruits of that robbery. He testified that when first questioned by the police he told them he was not involved in any robberies but later that night admitted he broke into the Bargain Center. He did not then implicate Parsons
"because they didn't have any proof on him." For the next week and a half he gave the police statements that it was only he "that did these jobs." He was asked why it was that, in a statement he gave the police January 17, 1961 (wherein he said no one was with him on "the jobs"), he admitted three or four "jobs" but later confessed to 12 or 13. He said "they didn't have any kind of proof on us," but then "they gave me a lie-detector test. The lie detector test showed that I had been --." At that point defense counsel objected that the witness was not "competent to testify as to that," but the court ruled the State could show the witness was advised of the results of the test and inquire as to what, if anything, he did as a result. The witness then testified that the polygraph examiner told a State Trooper in his presence "what the results were * * * and that I had lied about not having Gene Forest with me * * * --." The court at once admonished the jury not to consider "these statements" because not made under oath.
Wilds was then asked to say what he said or did "as a result of what you heard." He testified he then made a complete confession to the police. Further:
"Q. Do I understand you to say that you attempted to conceal Parsons' presence with you until the results of the lie detector test? A. That's right.
Q. You realized there was no use any more. A. That's right.
Q. You told the whole story. A. Yes.
Q. Is this story the truth? A. Yes."
Wilds then continued with the details of all the crimes involving Parsons' participation, including those of which the latter was convicted.
On cross-examination, defense counsel went over each of Wilds' original statements exculpating Parsons and offered them into evidence. On redirect examination, the State again had the witness confirm that "after it became obvious under the polygraph test, you couldn't cover up, you then gave a true statement."
We are satisfied that the admission of Wilds' testimony concerning his change of story as to Parsons' guilt after being informed of the result of the polygraph test was prejudicial error; moreover, that it was plain error if the defense objection is regarded as not having been pinpointed to the matter of admissibility or not adequately repeated as the full scope of the testimony was developed (points not raised by the State). If, as was held in State v. Driver, supra , the reference to a refusal of a defendant to take a lie-detector test was plain error as infected with a "horrendous capacity for prejudice," the defense position here is as strong or stronger. Here, the inferences from Wilds' testimony are little if anything short of unequivocal to the effect that the polygraph test he took disclosed that he had been lying when he first told the police that the defendant was not with him when the crimes were committed. Any possibility of doubt as to the communication of this information to the jury was erased by Wilds' testimony that the polygraph examiner said the tests showed Wilds lied when he said Parsons was not with him, testimony hardly minimized in its cumulative impact by the court's instruction to the jury to disregard it as hearsay. The jury was thus in effect informed, and repeatedly, that the lie-detector test showed that the defendant was a co-participant in the series of breakings and thefts related by Wilds.
It matters not that the damaging evidence was elicited by means of disclosure of the result of a lie-detector test administered to a witness rather than to the defendant, where the witness is one who when he took the test knew whether the defendant was guilty or not. Cf. Kaminski v. State , 63 So. 2 d 339 (Fla. Sup. Ct. 1953); People v. Carter , 48 Cal. 2 d 737, 312 P. 2 d 665 (Sup. Ct. 1957). And see State v. Arnwine, supra (67 N.J. Super. , at pp. 496-497). The prejudicial effect is logically identical. Nor does it matter that the disclosure is by indirection rather than directly. Ibid. , and see State v. LaRocca, supra (81 N.J. Super. , at pp. 46-47).
The harmful effect of the foregoing trial occurrence was rooted more firmly when the State sought to corroborate
Wilds' testimony by that of State Trooper Casey. The State elicited from him testimony that he asked Wilds at the county jail to take a polygraph examination, whereupon the defense objected that "the findings on a polygraph test are inadmissible, so anything leading up to that is absolutely inadmissible." There then ensued a colloquy before the jury wherein the prosecutor said he did not propose to adduce "the result of the test" but "only what happened before or after the polygraph test was given to him." And when a further defense objection to a question to Casey as to why Wilds was willing to give a revised statement after he took the test, was made, on grounds of hearsay, the prosecutor repeated in the form of argument the entire substance of Wilds' previous testimony on the point which we have held itself was prejudicial.
We fully appreciate that it was the State's position at trial, and is now on appeal, that there was no purpose to apprise the jury of the result of Wilds' polygraph test, but only to fortify his credibility against the expected effort of the defense to attack it on the basis of the previous inconsistent statements by Wilds as to Parsons' participation. Preliminarily, if this were a valid reason, the effort should at least have been withheld until after the defense launched the attack on Wilds' credibility so as to avoid the inevitable prejudice to the defense unless and until it was absolutely necessary. Credibility ordinarily cannot be rehabilitated until attacked. McCormick, Evidence (1954), § 49, p. 105. Cf. State v. Sullivan , 24 ...