In Re The Detention Of: Sheldon Martin

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Detention of
SHELDON MARTIN,
Appellant.
) 	No. 71057-5-1
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) 	DIVISION ONE 	3o*>
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) 	UNPUBLISHED OPINION 3 - -1—
) 	FILED: 	March 31, 2014
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Grosse, J. — Absent stipulation of both parties, polygraph examinations
are generally inadmissible. 	Here, prior to a trial on whether the defendant should
be committed as a sexually violent predator, the defendant moved to admit the
results of a polygraph examination that his expert relied on in forming his opinion
that the defendant was not a pedophile. 	The trial court noted the unreliability of
polygraph examinations and that the evidence was being introduced to prove the
truth of the statements, thereby invading the province of the jury. 	In finding the
evidence inadmissible, 	the trial court properly balanced the 	relevancy of the
evidence against its potentially prejudicial effect under ER 403. 	The trial court
did not abuse its discretion in denying the defendant's motion.
FACTS
Sheldon 	Martin 	suffered 	abuse 	as 	a 	child. 	Martin 	admitted 	in 	his
deposition that he sexually offended against a 4-year-old girl when he was 10
years old.1 	At that time he was on release from 	Echo Glen and visiting his
mother and sister.
1 The parties stipulated that the videotaped deposition transcript was played to
the jury and was the official record of the testimony.

No. 71057-5-1/2
Martin testified that in 1976 he again fondled a 4- or 5-year-old boy. 	This
occurred when Martin was 16 years old and after Martin had received treatment
at the Morrison Center in Portland, Oregon. 	Martin coaxed the child into the
garage and 	performed oral sex on him. 	Martin was 	arrested and sent to a
juvenile facility.
Martin masturbated to thoughts of children during the 1980s when he was
in his twenties. 	In 1991, Martin was arrested and pleaded guilty to indecent
exposure for an incident at a Fred Meyer store in Vancouver, Washington where
he had followed a woman into the bathroom and began masturbating with one
hand while he grabbed the woman on her ankle. While awaiting the charges that
he eventually pleaded guilty to, Martin again went to a Fred Meyer store, this
time in Portland, intending to commit a sexual offense. 	Martin searched for
approximately 20 minutes until he spotted a girl who was approximately 3 years
old. 	Martin decided to kidnap and molest the child. 	Martin took the child by the
hand, leading her toward the exit near where he had parked. 	He was stopped by
security when the child began screaming and crying. 	Martin pleaded guilty to
second degree kidnapping and first degree attempted sexual abuse. 	Martin
testified that he would "always suffer from pedophilia."
Dr. Amy Phenix, a clinical psychologist, evaluated Martin in 2003. 	Phenix
interviewed Martin and reviewed all the available records. 	Phenix concluded that
Martin suffered from the mental abnormalities of pedophilia; that he was sexually
attracted 	to 	males 	and 	females, 	nonexclusively; that 	he 	also 	suffered 	from
alcohol and marijuana dependence; and finally, determined that Martin met the
criteria for sexually violent predator (SVP) commitment.
2

No. 71057-5-1/3
Dr. James Manley testified on Martin's behalf. 	Manley diagnosed Martin
with 	voyeurism, 	antisocial 	personality 	disorder, 	and 	marijuana 	and 	alcohol
dependence. 	Manley disagreed with Phenix that Martin suffered from pedophilia.
Manley 	based this opinion 	in 	part on Martin's denial that 	he was 	currently
masturbating while thinking about children.
The 	defense 	sought 	permission 	for 	Dr. 	Manley 	to 	testify 	regarding
favorable responses that Martin made while he was taking a second polygraph.
Martin's 	first 	polygraph 	was 	inconclusive. 	The 	trial 	court 	rejected 	Martin's
argument that the evidence was admissible under ER 703.2 	Although the court
acknowledged 	that 	under 	ER 	703 	an 	expert's 	opinion 	can 	be 	based 	on
inadmissible evidence, it also recognized that ER 703 did not give an expert
"carte blanche" to relate all the inadmissible evidence in order to explain his or
her opinion. 	The trial court ruled the polygraph results inadmissible. 	Martin
appeals.
ANALYSIS
To 	uphold 	a 	commitment of an 	individual 	as an 	SVP on 	appeal, the
reviewing court must find that the jury had sufficient evidence to find the following
elements beyond a reasonable doubt:
(1) That the respondent had been convicted of or charged with a crime
of sexual violence; and
(2) That 	the 	respondent 	suffers 	from 	a 	mental 	abnormality 	or
personality disorder; and
2 ER 703 provides:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known
to the expert at or before the hearing. If of a type reasonably relied
upon 	by 	experts 	in the 	particular field 	in forming 	opinions 	or
inferences 	upon 	the 	subject, 	the 	facts 	or 	data 	need 	not 	be
admissible in evidence.
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No. 71057-5-1/4
(3) That such mental abnormality or personality disorder makes the
respondent likely to engage in predatory acts of sexual violence if
not confined in a secure facility.1 ]
Here, the evidence establishes that Martin had a prior conviction that qualifies
under the statute. 	And the evidence presented by the State supported a finding
that Martin suffered from mental abnormality and that he was likely to engage in
predatory acts if not confined.
At issue in the case was whether Martin suffered from pedophilia. 	The
State's expert testified that he did, while Martin's expert disputed the diagnosis.
This was an issue of credibility for the jury.
Martin 	argued 	that 	he 	should 	be 	permitted 	to 	introduce 	polygraph
evidence that showed that his responses to two questions during a polygraph
examination 	indicated 	that 	he 	did 	not 	have 	fantasies 	about 	children 	while
masturbating. 	The trial court excluded the evidence under ER 403 because the
prejudicial effect outweighed its probative value.
ER 403 provides in pertinent part that "[although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury." 	This 	court
reviews a trial court's decision to admit or exclude evidence under an abuse of
discretion standard.4
Evidence 	from 	a 	polygraph 	is 	inadmissible 	because 	of the 	"inherent
problems" and 	unique difficulties posed by polygraph examinations which the
courts have consistently recognized as unreliable and, unless stipulated to by all
3 In re Audett. 158 Wn.2d 712, 727, 147 P.3d 982 (2006).
4 In re Pet, of West, 171 Wn.2d 383, 396-97, 256 P.3d 302 (2011).

No. 71057-5-1/5
parties, inadmissible.5 	In particular circumstances, the fact that a polygraph was
given may be relevant and admissible for purposes other than establishing the
truth or falsity of a disputed fact.6 	Here, as the trial court noted, the purpose of
admitting the polygraph was to assert the truth of the matter. 	This would invade
the province of the jury to decide Martin's credibility.7 	The trial court properly
exercised 	its discretion 	in finding 	the 	probative 	value 	of the 	evidence was
outweighed by unfair prejudice:
So my ruling is that if the doctors in this case want to come in and
say 	that 	they're 	basing 	their 	opinion 	in 	part 	on 	Mr. 	Martin's
statements or any other witness' statements and that in forming
their opinions they assume that those statements were accurate or
inaccurate for the purposes of their opinion, then they can do that,
but they cannot say: 	And a machine told me he either was lying or
wasn't telling the truth. 	Because that's not permissible and the jury
will take that evidence and do thing [sic] with it other than assess
the doctor's opinion. 	It's under a [ER] 403 analysis, even if he says
that the basis for my opinion or she says that's the basis for my
opinion, the jury will not use it in this court's opinion exclusively to
evaluate the opinion. 	They'll use it to say, well, the person was
telling the truth or lying.
And in this case the defense - the respondent wants to bring
it in to show that he's telling the truth.
Moreover, polygraph examinations have been excluded under ER 702 as well as
ER 403.8
Martin argues that he was not seeking to admit the evidence for its truth
but rather as the basis for Dr. Manley's opinion under ER 703. 	Martin contends
5 In re Pet, of Hawkins. 169 Wn.2d 796, 802-03, 238 P.3d 1175 (2010).
6 State v. Reav, 61 Wn. App. 141, 148, 810 P.3d 512 (1991) (admission of
polygraph permitted to demonstrate the thoroughness of government officials in
determining cause of death).
7 United States v. Scheffer, 523 U.S. 303, 313, 118 S. Ct. 1261, 140 L. Ed. 2d
413 (1998) ("By its very nature, polygraph evidence may diminish the jury's role
in making credibility determinations.").
8 Anderson v. Akzo Nobel Coatings. Inc.. 172 Wn.2d 593, 606-07 n.4, 260 P.3d
857(2011).
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No. 71057-5-1/6
that a polygraph is similar to penile plethysmograph results which are admissible
in Washington under ER 703 and 705. 	But as the United States Supreme Court
noted in United States v. Scheffer. "there is simply no consensus that polygraph
evidence is reliable. 	To this day, the scientific community remains extremely
polarized 	about the 	reliability 	of polygraph 	techniques."9 	In 	Scheffer, 	the
defendant sought to introduce evidence of a favorable polygraph examination to
show that he did not knowingly take drugs. 	The military court ruled that the
polygraph 	evidence 	was 	inadmissible 	under 	the 	military 	rules 	of evidence.
Because of the inherent unreliability of the polygraph evidence, the court held
that the per se exclusion of polygraph evidence was not a constitutional violation.
Likewise, Martin's argument, that the exclusion of the polygraph evidence here
implicated his due process rights, fails. 	"A defendant's right to present relevant
evidence is not unlimited, but rather is subject to reasonable restrictions," such
as those contained in evidentiary and procedural rules.10 	Federal courts have
upheld the exclusion of polygraph results under Federal Rules of Evidence (Fed.
R. Evid.) 403.11 	In Kwong, the court found that the polygraph evidence would not
assist the jury and further that the ambiguity of the questions asked 	might
mislead and confuse the jury.12 	Even if polygraph evidence is found to meet the
requirements of Fed. R. Evid. 702, federal courts have held that the results of a
polygraph may be withheld under Fed. R. Evid. 403 "if it finds that the probative
9 523 U.S. 303, 309, 118 S. Ct 1261, 140 L Ed. 2d 413 (1998).
10 Scheffer, 523 U.S. at 308.
11 United States v. Kwong, 69 F.3d 663, 668 (2d Cir.1995).
12 69 F.3d at 668.
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No. 71057-5-1/7
value 	of the 	evidence 	is substantially 	outweighed 	by the 	danger 	of unfair
prejudice, confusion of the issues, or misleading the jury."13
The trial court properly balanced the relevancy of the evidence against its
potentially prejudicial effect under ER 403. 	There was no abuse of discretion and
the trial court's evidentiary ruling did not deny Martin due process.
Affirmed.
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WE CONCUR:
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13 United States v. Cordoba. 194 F.3d 1053, 1063 (9th Cir. 1999) (internal
quotation marks and citations omitted).
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