On appeal from Superior Court, Law Division, Union County.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Petrella, P.J.A.D.
The Union County Prosecutor appeals by leave granted from a March 26, 1986 order entered by the trial judge which permits defendant Vincent Capone, who was charged with aggravated sexual assault, to introduce at trial the results of an unstipulated polygraph examination, and requires the five year old victim to submit to a psychiatric examination before being allowed to testify as a witness.
We deal first with the judge's ruling requiring the victim to submit to a psychiatric examination, without any hearing or showing of necessity. That ruling is clearly erroneous in light of State v. R.W., 104 N.J. 14, 22-23 (1986), which was decided by our Supreme Court subsequent to the March 26, 1986 order compelling the psychiatric examination. Hence, defendant's reliance on the decision in State v. R.W., 200 N.J. Super. 560 (App.Div.1985), is to no avail. That portion of the order is vacated on the basis of the record presented. The trial judge shall determine the qualifications of the infant as a witness.
We turn now to the question of whether Capone should be permitted to introduce the results of an unstipulated polygraph
examination where the stipulation that was signed expressly precludes it. A brief recitation of the facts will be useful. The State charges that on October 21, 1985 defendant, who had the care of the four year old male child of a family friend, instructed the child to commit certain sexual acts. The child told his mother about this the next morning, and she then contacted the Elizabeth police department. Capone voluntarily accompanied police officers to the police department that day. He admitted taking care of the child the previous night, denied any sexual abuse, and agreed to take a polygraph examination, but stated that he wanted to speak with a lawyer first.
The record indicates that the next day an assistant county prosecutor was in contact with defendant's attorney, who stated that he recommended to his client that he cooperate and agree to the stipulation. Defendant had told his attorney he had nothing to hide. The assistant prosecutor then discussed the polygraph with defendant and his father. Immediately prior to the polygraph test the assistant prosecutor sat down with Capone and went over the terms of the stipulation with him. Capone expressed his understanding of it and his willingness to take the examination; he signed the stipulation. Paragraph 8 of the stipulation provides:
This stipulation relates only to the examination to be conducted by the examiner noted herein. The results of any other polygraph examination shall not be admissible unless covered by a separate stipulation agreement.
Defendant argued to the trial court that there was inadequate explanation by the assistant prosecutor of the stipulation form; that he did not understand what he was signing; that his attorney was not aware of the provisions of the stipulation form, and the stipulation was never read word for word to him; and that the attorney did not fully apprise defendant of the ramifications of entering into the stipulation.
The trial judge granted defendant's motion to allow defendant to have a polygraph test taken by his own expert and offered into evidence, in addition to granting his motion to allow defendant's polygraph expert to testify with respect to the original examination. The State has not appealed from that
part of the ruling which allows defendant's expert to testify with respect to the original examination. The trial judge did not rule on that part of defendant's motion which sought to suppress the results of the polygraph examination on the basis that the stipulation was invalid. Hence, ...