Patterson v. State

¶1concurring specially.

¶2I concur.

¶3With respect to Division 2, it is incumbent on us to rule in this case separately on the admission of the polygraph test under the State Constitution, because appellant has raised such authority as an independent basis. Paragraph 14 of Georgia’s Bill of Rights guarantees that “Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel. . . ,”1 See Jones v. State, 57 Ga. App. 344 (195 SE 316) (1938), which, although it does not establish the outer limits of the right, points up its fundamental nature and some of the considerations of waiver.

¶4The majority opinion cites Van Kleeck v. State, 250 Ga. 551 (3) (299 SE2d 735) (1983), and Ivey v. State, 203 Ga. App. 886 (1) (418 SE2d 71) (1992). In Van Kleeck, the court rejected appellant’s urging that the test results were inadmissible on the ground that she did not have counsel present when the examination was given, despite her request for counsel. No reference is made to the authority relied on by appellant in that case, and the court does not identify the authority upon which its decision is based. It simply concluded that appellant had “voluntarily, knowingly and intelligently” waived her “ ‘Miranda’” rights, which of course would have included the right to counsel under the Federal Constitution. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The court came to this conclusion based on what had transpired before the test was administered. Whether the holding was intended to embrace both constitutions is not clear, but the state constitutional provision was not independently applied.2

¶5No authority on the right to counsel aspect of the polygraph test is cited in Ivey. In fact, the court pointed out that defendant cited “no law in support of his argument” and had admitted to the trial court that he had found none. The contention was that the test results should not be admitted when defendant consented to the test and to its use as evidence “without the advice of counsel.” Id. at 887. In that case, defendant had signed a written “ ‘Miranda’ ” form a *260week before agreeing to the test and also, at the time of the test, had signed another document indicating he waived his right to consult with a lawyer and have one present during questioning. The court concluded that there was “a knowing waiver” of the right to counsel. On the face of it, this too seems to be based on federal constitutional law. No plain statement is made to the contrary. See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983).

¶6Here, defendant’s signature is affixed on the form consenting to the results being used as evidence at trial. The form states in part: “[T]he advice of counsel in this matter is hereby expressly waived.” Defendant had been told that he did not have to take the test, that the results would not be admissible unless he agreed in writing, and that he had a right to counsel with respect to these decisions. Although the rule regarding inadmissibility absent a stipulation should expressly appear on the written stipulation so there is no doubt that the defendant knows this important caveat, it is not required. See Dein v. Mossman, 244 Ga. 866, 870 (3) (262 SE2d 83) (1979), in which the stipulation itself was oral but nevertheless accepted.

¶7Considering these circumstances, and including those recited in the majority opinion and particularly that defendant voluntarily went to the sheriff’s office at his own bidding for the purpose of taking the test after having the opportunity to consult anyone about it, I conclude that the state constitutional right has not been violated by the admission of the test results. Cf. People v. Zazzetta, 27 I11.2d 302 (189 NE2d 260) (1963); State v. Valdez, 91 Ariz. 274 (371 P2d 894) (1962); Conley v. Commonwealth, 382 SW2d 865 (Ky. 1964).

¶8By our decision, we are rejecting the contention, made by appellant, that it cannot be a valid waiver unless the defendant knows the rules of evidence and is aware of the scientific ramifications and questionable reliability of such tests. See Brown v. State, 209 Ga. App. 314, 316 (1) (433 SE2d 321) (1993).