State v. Albert

277 S.E.2d 439 (1981)

STATE of North Carolina v. Benjamin ALBERT, Jr.

No. 104.

Supreme Court of North Carolina.

May 5, 1981.

*440 Rufus L. Edmisten, Atty. Gen. by J. Michael Carpenter, Asst. Atty. Gen., Raleigh, for the State.

Owen W. Cook, Fayetteville, for defendant-appellant.

HUSKINS, Justice:

Defendant's sole assignment of error is directed to the action of the trial court in denying his motion for a mistrial.

The motion for a mistrial is based on the following exchange between defendant and the prosecuting attorney during recross examination of defendant:

Q. Mr. Albert, you answered all the questions of the officers, right? A. Yes. Q. And you told them you would be willing to take a polygraph examination? A. Yes, sir. Q. In fact you did take a polygraph examination, didn't you? A. Yes, I did. Q. And you failed it, didn't you? MR. COOK [defense counsel]: Objection. A. I don't know. COURT: Sustained. This is on recross.

Shortly thereafter, in the absence of the jury, defendant moved for a mistrial which was denied by the trial court. This constitutes the basis for defendant's sole assignment of error.

Defendant contends the questions posed to defendant on recross examination by the prosecuting attorney concerning a polygraph examination were so highly prejudicial that, even though the trial court sustained an objection thereto, the mere asking of the questions was so prejudicial as to deprive defendant of a fair trial. On the other hand, the State contends (1) that the questions were competent because defendant had previously opened the door and (2) if found to be incompetent, the court sustained defendant's objection thereto and no prejudice has resulted.

The record reveals that defendant on direct examination was asked the following *441 question by his attorney and gave the following answer:

Q. As part of the statement that you gave to the officers as you came back from Charlotte did you tell them that you would be willing to take a lie detector test? A. Yes, I did.

It is the rule in North Carolina that the results of a polygraph examination are not admissible in evidence absent a valid stipulation by the parties. State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979); State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961). Thus, questions concerning the results of a polygraph test that was not the subject of a pretrial stipulation are generally not permitted unless defendant himself has opened the door.

Here, defendant on direct examination had testified that he told the officers he would be willing to take a lie detector test. This testimony, unexplained, could well lead the jury to believe that the State had refused to give defendant such a test, or that defendant had taken the test with favorable results which the State had suppressed. Under such circumstances, the law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially. State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973); State v. Black, 230 N.C. 448, 53 S.E.2d 443 (1949).

The following language from State v. Small, 301 N.C. 407, 436, 272 S.E.2d 128, 146 (1980), is controlling on this point:

Here on direct examination defendant testified in such a way as to leave the false impression that the state had refused to accept his offer to submit to a polygraph examination. It was proper for the state, therefore, on cross-examination to show that, in fact, defendant had been given a polygraph. The state was not, however, required to stop there. Had it done so, the jury might have been left with the impression that the state, bearing the burden of proof, did not offer the results of the polygraph because they were unfavorable to it. Both the state and the defendant are entitled to a fair trial. Defendant by first injecting the subject of the polygraph into the trial in a manner designed to mislead the jury invited the very cross-examination of which he now complains.

The evidence the State sought to elicit concerning the polygraph examination was competent because the defense had opened the door for such evidence.

In any event, the trial court sustained defendant's objection to the questions concerning the polygraph examination. This ruling was favorable to defendant and certainly results in no prejudice to him.

For the reasons stated we hold that the challenged cross-examination was not prejudicial to defendant. Evidence of defendant's guilt seems overwhelming. No prejudicial error having been shown, the verdict and judgment must be upheld.

NO ERROR.