On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-03-00231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2011 - Decided Before Judges Lisa, Reisner and Alvarez.
The opinion of the court was delivered by REISNER, J.A.D.
Defendant Emmanuel Mervilus appeals from his conviction for first degree robbery, N.J.S.A. 2C:15-1, and aggravated assault, N.J.S.A. 2C:12-1b(1), -1b(2). Based on improper expert testimony concerning polygraph evidence, we reverse the conviction and remand for a new trial. If the State intends to rely on polygraph evidence at the re-trial, the State must first establish the reliability of polygraph evidence at a Frye*fn1
hearing. At the N.J.R.E. 104 hearing, the defendant may also challenge the reliability of his individual polygraph test, e.g., whether the machine was working properly or the expert administered the test correctly. However, as we construe State v.A.O., 198 N.J. 69 (2009), a Frye hearing is mandatory. I
We begin by summarizing the most pertinent history and the trial
evidence. At a pretrial hearing, all counsel agreed to the following
facts as alleged by the State: Near the intersection of Morris and
Union Avenues in Elizabeth, the victim, Miguel Abreu,*fn2
flagged down two police officers. He reported that he had
been robbed by three men, one of whom stabbed him and another of whom
fled on a bicycle with his backpack. Abreu said he had followed the
two remaining assailants down Morris Avenue. He pointed out two men
standing some distance away and told the officers that they had
attacked him. Based on this identification, the police arrested defendant and
co-defendant, Daniel Desire.
Relying on State v. Ruffin, 371 N.J. Super. 371 (App. Div. 2004), the judge denied a Wade*fn3 hearing because defendant presented "no evidence . . . which alleges that the officers were, in any way, suggestive" and "[i]n fact, there is no evidence that they said anything to the victim prior to his identifying" the two suspects.
At the trial, Abreu testified that after leaving work he rode his
bicycle to the Rahway train station and took the train home to
Elizabeth. As Abreu and a co-worker were walking away from the
Elizabeth train station along Morris Avenue, they encountered a group
of three men. Abreu described them as two tall black men wearing their
hair "rolled," and one man who was "very little." One of the tall men
grabbed Abreu's arms from behind, while the other tall man approached
him from the front. The man in front swung a knife at Abreu and cut
him. According to Abreu, as he was trying to escape, his backpack
started to slip off one of his arms. The man behind him pulled the
backpack off Abreu's other arm and handed it to the small man, who
fled on "a small bike that they had." Although the two
larger men then walked away, Abreu testified that he "never lost
sight" of them from the time they attacked him until the police
arrived and he was able to point them out to the officers.
At the trial, Abreu claimed that he got a good look at the two larger men. But when asked if he saw either of them in the courtroom, Abreu identified a spectator whom he said resembled the assailant who stabbed him.*fn4 On cross-examination, he admitted that he could not positively identify either attacker in the courtroom. However, he testified that he was sure that the two men whom the police arrested on the night of the attack were the ones who robbed him. He asserted that he knew that the police were arresting the right suspects because a knife was found on the ground near the two arrestees.
According to Officer Benenati, he was passing by in his patrol car when Abreu rolled his bicycle into the street in front of the police vehicle, showed the officer his stab wound and asked for help.*fn5 When Benenati asked who stabbed him, Abreu pointed to two men who were walking about 100 yards away. After Benenati's partner recovered a knife about ten feet from the two suspects, Abreu was able to identify it as the knife used to stab him.*fn6 The suspects, later identified as defendant and Desire, were photographed at the police station. Benenati then showed copies of those photographs to Abreu, who identified the subjects as his attackers. In his testimony, Benenati also identified the men in the photographs as being the persons he arrested on the night of the assault.
Before the trial, defendant, who was represented by counsel, signed an agreement to take a polygraph test and stipulated to its admissibility at his trial. The State presented the test results through the testimony of a polygraph expert, Lieutenant John Kaminskas. He first explained in general how a polygraph worked, repeatedly referring to the different reactions of persons who were "innocent" as opposed to those who were "guilty." He also referred to the ability of the test to differentiate persons who were "telling the truth" as opposed to those who were "lying."
After next describing the results of defendant's polygraph test, during which defendant denied involvement in the robbery, Kaminskas was asked if he was "able to develop an opinion whether or not Mr. Mervilus was telling the truth." Summarizing his views, Kaminskas testified that "in my opinion . . . he wasn't telling the truth." Under questioning from the prosecutor, Kaminskas also testified that in his extensive experience as a polygrapher, in "between 60 and 70 percent of the . . . tests I conduct[,] I find the . . . people are truthful." In those cases, he would report the results to the "investigating officers" and "a lot of times the case is terminated or charges against the person are dropped."
On cross-examination, Kaminskas referred to the test as "not just a lie detector [but] also a truth indicator." He testified that he had never encountered a situation in which he had opined that "someone was . . . showing signs of deception, and [it later] came out that they were truthful." He also described a "guilty" suspect as being "a little more anxious . . . because they know that the truth is going to be found out."
Defendant testified that he was not involved in the attack on Abreu. According to defendant, he insisted on taking a polygraph test because he believed it would establish his "innocence." He testified that at the time he took the test, he was distraught because his mother had just died. When told that he failed, defendant offered to re-take the polygraph test, but he ...