Unpublished Disposition, 855 F.2d 862 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 855 F.2d 862 (9th Cir. 1987)

The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee,v.Roman CABRERA, Defendant-Appellant.

No. 87-1365.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 1988.Decided Aug. 19, 1988.

Before CHOY, FARRIS and WIGGINS, Circuit Judges.


MEMORANDUM* 

Roman Cabrera appeals from his convictions for attempted burglary and reckless driving. Cabrera claims that the trial court erred in admitting stipulated evidence of a polygraph examination, in failing to give a limiting instruction, and in admitting opinion testimony of a polygraph examiner. We AFFIRM.

FACTS AND PROCEEDINGS BELOW

A territorial grand jury in Guam indicted Cabrera for attempted burglary and reckless driving. At trial, the government called Officer Rivos to testify as to three polygraph examinations conducted with Cabrera. Rivos was offered as an expert and qualified by the court. The charts and reports of the exams were admitted into evidence by way of stipulation.1 

After the charts were admitted, the prosecution asked Rivos for an opinion about the results of the polygraph tests. The defense objected and asked that Rivos' opinion be limited to whether the tests indicated deception. The question was rephrased and Cabrera made no further objection. Rivos testified that he believed Cabrera had lied during the polygraph examinations.

The judge gave the jury CALJIC 2.80, the standard California instruction on expert testimony, but did not give any specific instructions regarding the polygraph examinations. Cabrera did not object to the jury instructions.

On February 12, 1986, the jury convicted Cabrera of attempted burglary and reckless driving. He was sentenced March 18, 1986. The judgment was affirmed by the Appellate Division of the District Court of Guam November 9, 1987. This timely appeal followed.

DISCUSSION

Cabrera claims that the trial court erred in admitting the results of the stipulated polygraph exams. A ruling on the admissibility of evidence cannot be raised on appeal if no contemporaneous objection was made at trial unless plain error is shown. United States v. Houser, 804 F.2d 565, 570 (9th Cir. 1986).

The trial court here did not commit plain error. We have held that evidence of polygraph examinations is admissible where there has been a stipulation. See Brown v. Darcy, 783 F.2d 1389, 1397 (9th Cir. 1986); Herman v. Eagle Star Ins. Co., 396 F.2d 427, 427 (9th Cir. 1968); see also Poole v. Perini, 659 F.2d 730, 735 (6th Cir. 1981), cert. denied, 455 U.S. 910 (1982); United States v. Oliver, 525 F.2d 731, 735-36 (8th Cir. 1975), cert. denied, 424 U.S. 973 (1976); People v. Houser, 85 Cal. App. 2d 686, 193 P.2d 937 (1948).2 

Cabrera argues that even if the polygraph evidence was properly admitted, the trial court failed to follow the proper procedures. Specifically, Cabrera argues that the record does not disclose: 1) a knowing, voluntary waiver, 2) that the court was satisfied as to the reliability of the test results, or 3) that the jury was properly instructed.

Cabrera does not present any facts suggesting that he did not enter into the stipulation voluntarily, upon the advice of counsel. His reliance on Oliver, 525 F.2d at 731, is misplaced. In Oliver, the defendant specifically asserted that his stipulation was not voluntary because the district court imposed the agreement as a condition to granting his motion under the Criminal Justice Act to expend excess funds to employ a polygraphy expert. Id. at 734. There is no evidence of such coercion here. Moreover, in Oliver, the court stated that the defendant's agreement as to the admissibility of the test could be looked at as a "deliberate bypass" based on trial strategy of his constitutional rights. Because Oliver asserted involuntariness for the first time on appeal, the court considered whether the trial court committed plain error and found none.

Cabrera's argument that the trial court failed to make an adequate inquiry into the circumstances and reliability of the examinations also fails. Cabrera does not even suggest any problems in the administration of the exams. Moreover, he did not make any such objection at trial.

Finally, Cabrera claims that the trial judge should have given a limiting jury instruction on the nature and use of polygraph examinations. Because Cabrera did not request a jury instruction, we review this claim for plain error. United States v. Payseno, 782 F.2d 832, 834 (9th Cir. 1986).

A jury instruction may have been helpful in this case. This court, however, has never required such an instruction when admitting stipulated polygraph results. The jury heard the testimony of the polygraph examiner and the defense had the opportunity to cross-examine. The jury could determine the weight to give the evidence. The failure to give a limiting instruction thus did not amount to plain error.

Cabrera argues that the trial court improperly allowed Officer Rivos to testify as to the "ultimate issue" of whether or not Cabrera was lying, thus usurping the function of the jury. Cabrera did not object to Rivos being asked whether the tests showed deception and therefore we review for plain error.

Under Rule 701 of the Guam Rules of Evidence, an expert can testify as to "an ultimate issue to be decided by the trier of fact." Cabrera does not claim that Rivos was not properly qualified as an expert. The admission of his testimony was thus not plain error.

CONCLUSION

The decision of the Appellate Division is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

A stipulation, signed by the defendant, his attorney, and a government representative was filed with the court September 24, 1985. It stated:

The parties hereto agree and stipulate that the defendant, Roman Cabrera, shall complete a polygraph examination in the above-referenced matter. Said examination to be conducted by the Guam Police Department.

It is further stipulated and agreed between the parties that the results of the polygraph examination shall be admissible in evidence at the trial of said matter.

 2

The admissibility of evidence in a criminal trial in Guam is governed by Guam law. The Guam Code of Evidence is, however, identical to the Federal Rules of Evidence. Therefore, where evidentiary questions arise, we rely on interpretations of the Federal Rules or their applicable counterparts under the California Rules of Evidence. Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir. 1985)