Bishop v. OREGON STATE PEN., COR. DIV.

581 P.2d 122 (1978)

Joe BISHOP, Petitioner, v. OREGON STATE PENITENTIARY, Corrections Division, Respondent.

Court of Appeals of Oregon.

Argued and Submitted April 24, 1978.

Decided July 18, 1978.

*123 Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

J. Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen. and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C.J., and LEE, RICHARDSON and JOSEPH, JJ.

RICHARDSON, Judge.

In this prison disciplinary proceeding petitioner appeals a decision of the Disciplinary Committee finding him guilty of violating Major Rules No. 7, Possession of Contraband, and No. 13, Conspiracy. The committee recommended he serve one year in segregation and forfeit 304 days' statutory good time. Petitioner contends the committee erred in denying his request for a polygraph examination and in not following the Corrections Division rules in forfeiting his statutory good time.

The charges arose when a prison staff member observed inmate George place several cartons of cigarettes in petitioner's cell. He saw petitioner hand inmate George a folded piece of white paper. The paper was subsequently retrieved and found to contain marijuana.

Inmate George stated he was merely a messenger requested to deliver the cigarettes to petitioner and that he received a folded piece of paper but did not know what it contained. A prison guard searched petitioner's cell and found 12 cartons of cigarettes and a torn piece of white writing paper. The torn edges of the paper containing the marijuana and of the paper found in petitioner's cell matched exactly.

Petitioner admitted receiving the cigarettes, but testified he gave inmate George a white book of matches. He stated the cigarettes were to be traded for a different brand. Petitioner requested a polygraph examination. The committee made no response to his request for a polygraph examination, and none was given. We classify this as a denial of his request.

We held in Sandlin v. OWCC, 28 Or. App. 519, 559 P.2d 1308 (1977), that constitutional due process does not require the state to grant an inmate's request for a *124 polygraph examination, but the request may be honored, in the discretion of the Disciplinary Committee, under ORS 421.190. The discretion authorized in this statute must be exercised with a view toward affording the accused inmate a reasonable opportunity for a fair hearing. Whether a fair hearing is accorded an inmate must be determined in the context of the institutional setting. What may be appropriate in a civil or criminal trial may not necessarily be appropriate in a prison disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Bonney v. OSP, 270 Or. 79, 526 P.2d 1020 (1974); Bekins v. OSP, 19 Or. App. 11, 526 P.2d 629 (1974).

In exercising its discretion to grant or deny a request for a polygraph examination, the committee may properly consider the doubtful validity of polygraph test results, see State v. Green, 271 Or. 153, 531 P.2d 245 (1975); In re Hubert D. Black, 251 Or. 177, 444 P.2d 929 (1968), the availability of qualified operators, see Williams v. OSP, 29 Or. App. 455, 564 P.2d 706 (1977), and equipment, and the time and expense necessary to conduct the test. These factors may be considered by the committee in conjunction with the necessity of a polygraph examination to resolve the issues presented in the hearing.

There was substantial evidence that petitioner passed the folded piece of paper containing the marijuana to inmate George. Petitioner was given an opportunity to contest the evidence and on his request a further investigation was conducted. Under the facts of the case the committee did not abuse its discretion in denying the polygraph examination. We decline the invitation of petitioner to impose a limit on the Disciplinary Committee's discretion to the effect that a polygraph examination must be given when requested to resolve the veracity of an inmate's denial.

Petitioner's contentions respecting the validity of sanctions imposed is resolved by our holdings in Melton v. OSCI, 34 Or. App. 951, 580 P.2d 572 (1978), and Mason v. OSCI, 34 Or. App. 329, 578 P.2d 808 (1978).

Affirmed.