State v. Molina , 117 Ariz. 454 ( 1977 )

OPINION

RICHMOND, Judge.

On March 29, 1976, the State of Arizona instituted a special paternity action pursuant to A.R.S. § 12-841 et seq., as amended, alleging that appellee is the natural father of a child born out of wedlock. On August 9, 1976, the parties’ attorneys stipulated that the complaining witness and the appellee would submit to polygraph examinations, and:

“The parties further stipulate that the matter need not proceed to trial before a jury at a further date, but instead stipulate as follows:

“1. That if the polygraph examination reveals that the defendant did not have sexual relations with the complaining-witness during the period from April 15, 1975 through June 15,1975, then the complaint shall be dismissed.

“2. That if the polygraph examination reveals that the complaining-witness had sexual relations with any person or persons other than the defendant during the period from April 15, 1975 through June 15, 1975, then the complaint shall be dismissed.

“3. That if the polygraph examination reveals that the defendant had sexual relations with the complaining-witness during the relevant period of conception as set forth, and, if the polygraph examination reveals that the complaining-witness did not have sexual relations with any persons other than the defendant during the relevant period of conception, then judgment shall be entered in favor of the plaintiff and against the defendant

By minute entry on October 7, 1976, the court found on the basis of the polygraph examinations that appellee was the father and ordered the state to submit a proposed judgment. On October 18 appellee’s counsel was allowed to withdraw. New counsel was substituted and a motion for continuance was granted. Judgment against the appellee was entered on November 1. On the same day, however, a motion to vacate the judgment was argued and granted on the basis that the stipulation was not made in the presence of the parties and was not signed by appellee.¹

The matter then was tried to the court, and on December 31 the complaint was dismissed. The state has appealed from the order vacating the first judgment and the order of dismissal. We affirm.

The state argues that the appellee having signed a consent for the polygraph examination and his attorney having signed a stipulation on his behalf, the rationale of State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962), has been satisfied. Valdez held that polygraphs and expert testimony relating thereto are admissible in Arizona criminal cases only upon stipulation ² and subject to certain qualifications. One of the qualifications is that the prosecuting attorney, the defendant and his counsel must all sign a written stipulation providing for submission to the test and for the subsequent admission at trial of the graphs and the examiner’s opinion on behalf of either party. While a paternity action is not a criminal proceeding, we think Valdez applies, and the evidence was properly excluded.

The state contends that the stipulation was valid in any event as to the complaining witness because her credibility was attacked and could have been sustained by use of the polygraph test. The Valdez requirements are not restricted to a test administered to the defendant, but extend to use of any material polygraph evidence. Further, the admissibility of the test is subject to the discretion of the trial judge, notwithstanding the stipulation of the parties.

The state’s last contention is that the court erred in dismissing the complaint because the state has satisfied its burden of proof by a preponderance of the evidence. Where there is a conflict of evidence we will not review the judgment of the trial court. Associated Builders, Inc. v. Stovall, 102 Ariz. 54, 424 P.2d 455 (1967).

Affirmed.

1 . In appellee’s affidavit in support of his motion to vacate, he stated that he took the lie detector test because he thought it could only be used to exonerate him and could not be used against him. He also stated that he did not see the stipulation until after the polygraph examination.

2 . The Valdez holding was expressly reaffirmed as recently as 1975 in State v. Goldsmith, 112 Ariz. 399, 542 P.2d 1098.

1 . And see, L. M. Romero, “Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence”. 6 New Mexico L.Rev. 187 (1976).