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Washington v. Pleasant

COURT OF APPEALS OF WASHINGTON, DIVISION THREE


August 22, 1978

THE STATE OF WASHINGTON, RESPONDENT,
v.
ANGELO DENNY PLEASANT, APPELLANT

McInturff, J. Munson, C.j., concurs. Green, J., concurs by separate opinion.

Author: Mcinturff

[21 WashApp Page 178]

Angelo Denny Pleasant appeals convictions of first-degree murder and manslaughter in the shooting deaths of two Yakima teachers.

Mr. Pleasant, a stellar high school wrestler, was befriended by Glynn Moore, a teacher and coach at a Yakima high school who persuaded Mr. Pleasant to attend that school to participate in its wrestling program. Following a divorce from his wife, Dee Ann, Mr. Moore became depressed and obsessed with the idea of reuniting with his former wife. However, she was living with Morris Blankenbaker, another Yakima high school teacher, to whom she had been married for several years prior to her marriage with Mr. Moore.

Believing that Mr. Blankenbaker was the sole obstacle to regaining favor with his ex-wife, Mr. Moore allegedly asked Mr. Pleasant, who was then a college student in Ellensburg, to kill Mr. Blankenbaker to clear the path to Dee Ann. In November 1975 Mr. Blankenbaker was killed outside his home after returning from work as a bouncer at a local tavern. Mr. Pleasant admits being at the scene of the shooting but claims it was done by his brother, Anthony, who also was a friend of Mr. Moore.

In December 1975 Mr. Moore sought to allay suspicion that he had a part in the Blankenbaker slaying. He also

[21 WashApp Page 179]

desired to gain the sympathy of Dee Ann. Therefore, he allegedly asked Mr. Pleasant to wound him with the same weapon involved in the Blankenbaker death. Again, Mr. Pleasant admits being at the scene but blames the death of Mr. Moore on a Larry Lovato.

Following his arrest and after having been fully advised of his rights, Mr. Pleasant confessed to both killings. Tape recordings of both statements were played to the jury. Mr. Pleasant later recanted his stories of both slayings, testifying his brother shot Mr. Blankenbaker and Mr. Lovato killed Mr. Moore. Mr. Pleasant was given polygraph examinations regarding the homicides on three occasions, and his brother was tested once.

Counsel attempted to admit the results of the polygraph examinations given to Mr. Pleasant and his brother. Two polygraph experts agreed that the first two tests given to Mr. Pleasant were inconclusive. On the third, the Yakima police polygrapher, Sgt. Richard Nesary who administered all of the tests in question, admitted that it was not one of the best tests he had run, but he opined that Mr. Pleasant was not being deceptive when he said his brother killed Mr. Blankenbaker. The other witness, Dr. Stanley Abrams, a nationally recognized polygraphy expert, said the same third examination "was leaning very slightly in the truthful direction but only slightly as far as I was concerned, only slightly." He considered the results inconclusive.

On the test given to Anthony Pleasant, Sgt. Nesary said he was being deceptive when he denied shooting (and shooting at) Mr. Blankenbaker. Dr. Abrams said the test "was certainly in the direction of deceptive. It wasn't as high as I would like it to be to be quite sure of it but it was certainly in that direction." He added that he would want to perform a test on Mr. Pleasant's brother or see one run on him before he could give a definite opinion.

Feeling bound by precedent, the court refused to admit the results of the examinations because the State and Mr.

[21 WashApp Page 180]

Pleasant had not stipulated to their admissibility.*fn1 Nonetheless, the court allowed Mr. Pleasant's counsel to make a lengthy offer of proof concerning polygraphy generally and the tests given to the Pleasant brothers specifically.

Mr. Pleasant's co-counsel have presented 20 assignments of error, 17 of which are argued in the spirit of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), and State v. Koehler, 73 Wash. 2d 145, 436 P.2d 773 (1968). In a pro se supplemental brief Mr. Pleasant raises six alleged errors.

The first question is whether the court erred in failing to sever the charges and grant separate trials on each slaying. Mr. Pleasant timely moved for severance pursuant to CrR 4.4*fn2 on the grounds joinder of both offenses would (1) require him to refute two sets of alibi witnesses (those of his brother and Mr. Lovato); (2) evidence of two killings

[21 WashApp Page 181]

would double the passion engendered by evidence of a single slaying; and (3) joinder required him to limit his explanation of the relationship between himself and Mr. Moore in defending against the Moore shooting because if he showed the depth of his feelings for Mr. Moore, he would be helping the State to prove its theory that he killed Mr. Blankenbaker at Mr. Moore's request.

[1] The rules regarding joinder of offenses are set out in CrR 4.3 and RCW 10.37.060.*fn3 The question of granting separate trials lies within the sound discretion of the trial court and will not be reversed unless there is a manifest abuse of that discretion.*fn4 Joinder will be upheld unless prosecution of all the crimes in a single trial will embarrass or confound the defendant in presenting separate defenses

[21 WashApp Page 182]

or the defendant will be erroneously prejudiced by cumulative evidence and hostility engendered by the totality of the evidence presented.*fn5 However, where evidence of one crime would be admissible to prove an element of the second, joinder of the two crimes cannot be said to be prejudicial where the other statutory criteria are met.*fn6 "The test is whether the questioned evidence tends to establish motive, intent, absence of accident or mistake, common scheme or plan, or identity or presence", State v. Kinsey, 7 Wash. App. 773, 778, 502 P.2d 470 (1972).

Since the offenses are of the same or similar character and connected together or constituting parts of a scheme or plan, they are amenable to joinder pursuant to the court rule and statute. The question then is whether trying both in a single trial was unduly prejudicial to Mr. Pleasant.

Evidence of both deaths tends to establish the scheme or plan undertaken by Mr. Moore to eliminate Mr. Blankenbaker and regain the favor of his ex-wife. Evidence of the Blankenbaker death tended to establish a motive for the slaying of Mr. Moore on the theory that Mr. Pleasant shot Mr. Moore to keep him from revealing information concerning his involvement in the Blankenbaker murder. Likewise, evidence of the Moore slaying tended to show the furtherance of his plan to regain favor with Dee Ann. In addition, both were killed by shots fired from the same weapon which was obtained by Mr. Pleasant shortly before each death from his cousin. Since evidence of both slayings would have been admissible in a separate trial for either, there was no error in their joinder.

The second issue is whether the court erred in denying Mr. Pleasant's motion to suppress the taped confessions.

[21 WashApp Page 183]

He contends the statements were not voluntarily given because his will to resist and act freely and intelligently was overborne by actions of Yakima policemen. In particular Mr. Pleasant points to numerous contacts with officers prior to his arrest during which he was not advised of his Fifth Amendment rights. He argues that the steady extraction of information from him during those contacts with the police led to his arrest and formed the preliminary basis of his taped statements. He also suggests that the time between his arrest and his later statements was so excessive as to be considered overbearing. Finally, he contends he was induced to make those confessions by promises from two officers that they would escort him to prison if possible and that they would recommend he be allowed to continue his education in prison.

[2] This court recently said in State v. Riley, 17 Wash. App. 732, 735, 565 P.2d 105 (1977):

To be admissible, a confession must be voluntary; and the test is whether the officer's behavior overcame the defendant's will to resist and brought about an admission that was not freely self-determined. The probable truth or falsity of the confession is not to be considered. Whether a confession is free and voluntary is not determined by whether the officer's conduct is shocking or the confession is cruelly extorted, but whether it was extracted by any sort of threats, violence, or direct or implied promises, however slight. A confession that is the product of coercion, physical or psychological, is involuntary and not admissible.

(Citations omitted.)

We note first that none of the statements Mr. Pleasant allegedly made to the officers during their investigation -- other than the confessions -- were admitted against him at trial. Nor were they made under circumstances which could be considered custodial. In regard to the statements admitted at trial -- his taped confessions -- we have thoroughly examined the record of the suppression hearing and have listened to the tapes. Each confession was made after about 2 hours of questioning on successive mornings following Mr.

[21 WashApp Page 184]

Pleasant's arrest. Each is preceded by warnings as to the full panoply of Fifth Amendment rights. There is nothing in the statements or in the record of the suppression hearing to suggest the statements made by Mr. Pleasant were anything but freely, intelligently and voluntarily given. In fact, during the hearing he denied the detectives had made promises to him.*fn7 Under those circumstances the court did not err in admitting the taped confessions.

Mr. Pleasant next assigns error to the court's failure to admit the results of the polygraph examinations given to him and his brother.

[3] In State v. Woo, 84 Wash. 2d 472, 475, 527 P.2d 271 (1974), the court said:

If we are to consider a departure from a virtually unanimous rule against the admissibility of polygraph examinations, absent stipulation, we must be furnished with a record sufficiently adequate to permit review of the subject.

The court indicated the following matters would be relevant in determining whether unstipulated polygragh results would be admissible:

There is nothing to disclose whether there exists even minimum accepted qualifications for polygraph operators. If standards do exist, one is left to speculate as to what they are. There is nothing in the records, by way of testimony or exhibit, concerning the trustworthiness of the most modern polygraph equipment. The type of equipment proposed to be used in the instant cases and its reliability are not disclosed. Further, the records are silent as to techniques to be used in the examinations and whether they are professionally acceptable.

[21 WashApp Page 185]

State v. Woo, supra at 474-75. Later, in State v. Young, 87 Wash. 2d 129, 131-32, 550 P.2d 1 (1976), the court said:

Upon examining the record made by the appellant in the case before us, we find it insufficient to support a reconsideration of the rule [against the admissibility of polygraph results absent stipulation]. Those factors which were mentioned as significant in State v. Woo, supra, were not covered in the appellant's offer of proof. We are not shown what the tests consisted of, what the qualifications of the examiners were, what the standards were which they followed, and what evidence there is of reliability.

We appreciate the reluctance of the court to depart from the almost overwhelming rule against the admissibility of polygraph evidence without stipulation between the parties. This is an area of the law fraught with sensitive emotional and policy considerations and long scarred with legal and scientific battles. Furthermore, neither State v. Woo, supra, nor State v. Young, supra, clearly establishes precisely what an offer of proof must contain before the rule against admissibility of polygraph results will be reexamined. Both cases refer only generally to issues which must be addressed, and neither opinion specifies the reason for the rule in this jurisdiction.

Generally, evidence of polygraph examinations is excluded on the grounds the technique has not attained general scientific acceptability.*fn8 That approach is not without

[21 WashApp Page 186]

its critics.*fn9 Furthermore, there is a slight, but perceptible, trend towards the admission of such evidence under

[21 WashApp Page 187]

narrowly prescribed standards.*fn10 One thing is certain: The state of polygraphy has advanced considerably since it was

[21 WashApp Page 188]

first denied legal respectability 50 years ago.*fn11

Our problem here is in attempting to evaluate Mr. Pleasant's offer of proof against the backdrop of Woo and Young, the steadfast reluctance of the courts to acknowledge polygraph evidence, the wealth of materials available on the subject,*fn12 and, of course, the facts and circumstances of the case before us. The examinations of Mr. Pleasant and his brother take on special significance because, despite the existence of circumstantial evidence to support the conviction, the critical issue at trial was Mr. Pleasant's credibility. At first, he confessed to both killings. Then he recanted his stories, blaming the Blankenbaker death on his brother. The results of the polygraph examinations -- without regard to the legal questions concerning their admissibility -- support the recantations. Because of the special significance attached to the Pleasant brothers' polygraph examinations and the likelihood of future cases involving similar questions, we turn in detail to the offer of proof regarding those tests.

Mr. Pleasant's offer of proof contained substantial testimony concerning the reliability of polygraph examinations

[21 WashApp Page 189]

generally.*fn13 The qualifications of Sgt. Nesary were adequately covered,*fn14 and the court was informed of the step-by-step examination process involving the Pleasant brothers.*fn15 Sergeant Nesary testified as to the questions he asked the brothers,*fn16 but we are not furnished with their answers to all of the questions nor were the charts of each

[21 WashApp Page 190]

examination offered into evidence.*fn17 While there was testimony that 19 other states have adopted standards for polygraph examiners, there was no evidence as to general standards required of them or their examination process,

[21 WashApp Page 191]

particularly within the state of Washington. While the machine used by Sgt. Nesary was identified and considered to be operating accurately, there is no testimony as to its reliability or the reliability of the specific testing procedures he used.*fn18 Finally, there is nothing to show the trustworthiness of the most modern polygraph equipment.*fn19

Under those circumstances and on the basis of Woo and Young, we must consider Mr. Pleasant's offer of proof inadequate for a proper review of the subject. That is so regardless of whether our court adheres to the traditional reason for excluding polygraph evidence (lack of scientific

[21 WashApp Page 192]

acceptance) or prefers the evolving approach that polygraph results be treated as other opinion evidence.*fn20 Thus, the court did not err in refusing to admit the results of the polygraph examinations given to the Pleasant brothers absent a stipulation as to their admissibility.

We have thoroughly reviewed the record and have carefully examined the remaining assignments of error. Considered singly or cumulatively, we find them to be without prejudicial effect. Nonetheless, we must say, in regard to Mr. Pleasant's pro se contention that he was denied adequate assistance of counsel, that the case was excellently tried by the court and all counsel. Every safeguard was employed to insure Mr. Pleasant was fairly and competently tried.

Judgment of the Superior Court is affirmed.

Appendix

Cases

For a variety of cases from other jurisdictions see the cases cited in the opinion. See also Physiological or Psychological Truth and Deception Tests, Annot., 23 A.L.R.2d 1306 (1952) and Admissibility of Lie Detector Test Taken Upon Stipulation That the Result Will Be Admissible in Evidence, Annot., 53 A.L.R.3d 1005 (1973).

Texts

N. Ansley, Legal Admissibility of the Polygraph (1975).

R. Ferguson, Polygraph for the Defense (1974).

R. Ferguson & A. Miller, The Polygraph in Court (1973).

R. Ferguson, The Scientific Informer (1971).

J. Reid & F. Inbau, Truth and Deception (1966).

[21 WashApp Page 193]

Commentary

M. Abbell, Polygraph Evidence: The Case Against Admissibility in Federal Criminal Trials, 15 Am. Crim. L. Rev. 29 (1977).

R. Axelrod, The Use of Lie Detectors by Criminal Defense Attorneys, 3 Nat. J. of Crim. Def. 107 (1977).

S. Abrams, Polygraphy Today, 3 Nat. J. of Crim. Def. 85 (1977).

Note, Polygraphy: Short Circuit to Truth?, 29 U. Fla. L. Rev. 286 (1977).

C. Menard, The Polygraph: A Critical Appraisal, 50 Fla. Bar. J. 147 (1976).

M. Forkosch, The Lie Detector and Mechanical Jurisprudence, 28 Okla. L. Rev. 288 (1975).

B. Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid to Determining Credibility in a Perjury-Plagued System, 26 Hast. L.J. 917 (1975).

R. Pino, The Polygraph as a Dispositional Aid to the Juvenile Court, 9 New Eng. L. Rev. 311 (1974).

Note, Pinocchio's New Nose, 48 N.Y.U.L. Rev. 339 (1973).

Comment, The Polygraph: Scientific v. Judicial Acceptance, 27 U. Miami L. Rev. 254 (1972).

Skolnick, Scientific Theory and Scientific Evidence: An Analysis of Lie Detection, 70 Yale L.J. 694 (1961).

Wicker, The Polygraphic Truth Test and the Law of Evidence, 22 Tenn. L. Rev. 711 (1953).

Disposition

Holding that joinder of both charges was not prejudicial to the defendant and that the results of polygraph tests were not admissible under the offers of proof, the court affirms the judgment.

Green, J. (concurring in the result only)

As to the polygraph issue, I concur in the result only. The product of a polygraph test is inadmissible unless stipulated to by both the defense and the prosecution. State v. Ross, 7 Wash. App. 62, 69, 497 P.2d 1343, 53 A.L.R.3d 997, review denied, 81 Wash. 2d 1003 (1972). Here, the parties did not stipulate to the polygraphs; hence, they were inadmissible.


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