Wood v. State , 71 O.B.A.J. 2283 ( 2000 )

SUMMARY OPINION

CHAPEL, Judge:

11 Raymond Joe Wood was tried by jury and convicted of Indecent Exposure in violation of 21 0.8.1991, § 1021(A)(1), after former conviction of two felonies, in the District Court of Kay County, Case No. CF-95-850. In accordance with the jury's recommendation, the Honorable D.W. Boyd sentenced Wood to two hundred (200) years imprisonment and a fine of ten thousand ($10,000.00) dollars. Wood has perfected his appeal of this conviction.

12 Wood raises the following propositions of error:

I. Mr. Wood was deprived of a fair trial on the issue of punishment when the trial court directed a verdict on the issue of Mr. Wood's alleged prior convictions and instructed on two prior convictions when the second alleged prior conviction had been previously stricken and when the prosecutor appealed to societal alarm, garnered sympathy for the victim and raised the issue of parole.

II. The trial court erred in allowing the preliminary hearing testimony of Amanda to be admitted into evidence.

III. The trial court erred by admitting a confession which was secured through a violation of Mr. Wood's right to assistance of counsel.

IV. Appellant was denied a fair trial when the trial court improperly admitted hearsay testimony under 12 0.8.8upp.1992, § 2808.1.

V. The trial court erred in failing to address Mr. Wood's motion to dismiss his attorney.

3 After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits, we find that reversal is required under Proposition III and that the case must be remanded for a new trial We do not address the other propositions of error raised on appeal.

14 Wood and his counsel agreed to a polygraph examination to be conducted by the 0.S8.B.1I. Wood's counsel accompanied him to the polygraph session but was excluded from the examination room because O.S.B.I. policy prohibited counsel's presence. Counsel waited outside. After the polygraph examination was concluded, and while counsel was still outside, an O.S.B.I. agent Miran-dized Wood and then questioned him, sue-cessfully obtaining an incriminating statement which was admitted against him at trial. This procedure violated Wood's Sixth Amendment right to counsel and admitting this illegally obtained statement requires reversal.

T5 In Wyrick v. Fields,¹ the defendant agreed to a polygraph examination and attended the exam without counsel. Here counsel was present and was excluded from the session. Wood and his attorney had agreed to a polygraph exam and it follows that anything Wood said during the exam could be used against him. However, nothing in this record indicates that Wood agreed to post-polygraph interrogation without counsel.²

16 Additionally, Brewer w. Williams ³ holds that an individual against whom adversary proceedings have begun has the right to legal representation during governmental interrogations.⁴ The State has the burden of proving that the accused knowingly and intentionally relinquished or abandoned that right in order to introduce into evidence incriminating statements made outside the presence of counsel.⁵ In Brewer, the United States Supreme Court found that the accused did not relinquish his rights to counsel and therefore the incriminating statements were not admissible since they were obtained in violation of the accused's constitutional rights.⁶ The Court reasoned that one cannot unintentionally waive one's Sixth Amendment rights to counsel during government interrogation by merely agreeing to limited and specific contact with police outside the presence of counsel. In Brewer, the accused agreed only to transportation outside the presence of counsel, not to questioning conducted during the ride.⁷

117 Wood agreed to a polygraph exam outside the presence of counsel but not to post-exam interrogation without counsel. Wood's consent was limited and his counsel should have been present for any questioning following the conclusion of the polygraph exam absent a waiver. The accused and his attorney should execute a waiver of the right to counsel prior to a polygraph exam.⁸ For an informed waiver, law enforcement must disclose the complete parameters of the polygraph examination and any statements obtained outside the scope of the waiver are inadmissible. Here, the police exceeded their agreement with Wood and his attorney and Wood's confession is inadmissible.

Decision

18 The Judgement and Sentence of the lower court is REVERSED and REMANDED for a new trial.

STRUBHAR, P.J., and JOHNSON, J., concur. LUMPKIN, V.P.J., and LILE, J., dissent.

1 . Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982).

2 . As a general rule, a confession obtained in anticipation of, during, or following a polygraph examination is not inadmissible. Young v. State, 1983 OK CR 126, ¶ 13, 670 P.2d 591, 594.

3 . Brewer. v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 LEd.2d 424 (1977).

4 . Brewer, 430 U.S. at 401, 97 S.Ct. at 1240.

5 . Brewer, 430 U.S. at 404, 97 S.Ct. at 1242.

6 . Brewer, 430 U.S. at 404, 97 S.Ct. at 1242.

7 . Brewer, 430 U.S. at 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424.

8 . To provide a clear record, it would be a better practice to have a written waiver.