504428MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 50442-8-I
Title of Case: State of Washington, Respondent v. Misty
S. Justesen, Appellant
File Date: 04/05/2004


SOURCE OF APPEAL
----------------
Appeal from Superior Court of Whatcom County
Docket No: 99-1-00814-9
Judgment or order under review
Date filed: 04/10/2002
Judge signing: Hon. Susan K Cook


JUDGES
------
Authored by Mary Kay Becker
Concurring: H Joseph Coleman
William W. Baker


COUNSEL OF RECORD
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Counsel for Appellant(s)
Cheryl D Aza
Whatcom County Public Defender
311 Grand Ave Ste 305
Bellingham, WA 98225-4038

Gregory Charles Link
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Counsel for Respondent(s)
Thomas Edward Seguine
Skagit Co Prosecutor
605 S 3rd
Mount Vernon, WA 98273-3867

Kimberly Anne Thulin
Whatcom Cty Pros Atty's Office
311 Grand Ave Ste 201
Bellingham, WA 98225-4038

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION I

STATE OF WASHINGTON, ) NO. 50442-8-I
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
MISTY JUSTESEN, )
)
Appellant. ) FILED

BECKER, C.J. - Appellant Misty Justesen concealed her daughter in
Massachusetts for 18 months and was convicted of custodial interference.
Her defense was a claim that she believed the girl's father was sexually
molesting her. Justesen knew the father had passed a polygraph test in
which he denied sexual misconduct, and the trial court allowed the jury to
consider the polygraph evidence in deciding whether it was reasonable for
Justesen to maintain a belief that the father was a molester.
The polygraph is not a reliable indicator of truth for purposes of court
proceedings. Because the polygraph evidence was used to prove that the
father's denial was truthful, it should not have been admitted without a
stipulation. Finding that the error was prejudicial, we reverse the
conviction.
Testimony at trial established that KS was the father of a daughter born to
Misty Justesen in 1994. They soon separated, and informally arranged to
share parenting responsibilities. KS initiated a paternity action.
Before the child was three years old, Justesen had her examined for signs
of sexual abuse several different times. The examinations were
inconclusive. Justesen reported to local police and Child Protective
Services that she suspected KS of molesting the child. These agencies
investigated but found Justesen's suspicions to be unsubstantiated.
A temporary court order issued when the child was three years old provided
for Justesen and KS to share custody on an alternating weekly basis. Their
relationship remained acrimonious. In summer of 1999, shortly after
meeting with a court-appointed mediator in regard to the need for a
permanent parenting plan, Justesen took her daughter and left the state. A
police investigation located the two of them 18 months later in
Massachusetts, where they were living under assumed names.
The State charged Justesen with one count of custodial interference in the
first degree.1 A jury found Justesen guilty as charged.
THE POLYGRAPH RULING
The primary issue on appeal is whether the court erred in admitting
evidence that KS passed a polygraph examination when the police were
investigating him.
Before trial, Justesen moved to exclude any evidence regarding the
polygraph examination or its results. She also served notice of her intent
to present a statutory defense. A defendant who can prove by a
preponderance of the evidence that, among other things, she reasonably
believed the child was in danger of imminent physical harm, has a complete
defense to a charge of custodial interference. RCW 9A.40.020(2)(a).
Ordinarily, evidence that a polygraph test has been taken or passed is
inadmissible absent stipulation by both parties because the polygraph has
not attained general scientific acceptability. State v. Descoteaux, 94
Wn.2d 31, 38, 614 P.2d 179 (1980), overruled on other grounds, State v.
Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982). In deciding to admit the
polygraph evidence without a stipulation, the trial court relied on State
ex rel. Taylor v. Reay, 61 Wn. App. 141, 810 P.2d 512, review denied, 117
Wn.2d 1012, 816 P.2d 1225 (1991).
Reay, a civil case, arose from a mandamus action brought by parents who
believed their daughter had been murdered by her husband. They sought to
compel a medical examiner to change his determination that the young
woman's death had been a suicide. The issue for the jury was whether the
examiner had acted arbitrarily and capriciously in classifying the death as
a suicide. Over the parents' objection, the jury was permitted to learn
that the evidence considered by the examiner during his investigation
included the results of the husband's polygraph test indicating that he was
being truthful when he denied causing the death. The trial court believed
it would be improper and artificial not to allow the jury to hear that the
examiner considered this evidence. The evidence came in with a limiting
instruction, cautioning that the polygraph was not sufficiently reliable to
be an indicator of truthfulness in court proceedings. 'However, the
polygraph is used by law enforcement as an investigatory tool and you may
consider its use here in evaluating the conduct and investigation carried
out by the Medical Examiner.' Reay, 61 Wn. App. at 148.
The Reay jury brought in a verdict deciding that the examiner did not act
arbitrarily or capriciously. The reviewing court, affirming the verdict,
concluded that admission of the polygraph evidence was not an abuse of
discretion because it was offered to prove that the examiner was thorough,
not to prove that the husband was innocent. The potential for prejudice
'was negligible in light of the purpose for which the polygraph was
admitted, as well as the limiting instruction given to the jury.' Reay, 61
Wn. App. at 150.
Viewing the present case as analogous to Reay, the trial court stated that
the prosecutor
is not offering the polygraph to convince the jury that {KS} did not
sexually assault his daughter. He is offering it to show that it is
another piece of information which Miss Justesen should have considered and
which should have helped to convince her that there was no sexual assault
going on. In other words, it goes to the reasonableness of her belief in
this danger to the child, doesn't it?{2}

The court decided the evidence would be admissible, with a limiting
instruction, 'because it was something that was told to Miss Justesen and
something which she should have considered in making her determination'.3
THE TRIAL
The State's case in chief quickly established the elements of the charge by
showing KS was entitled by court order to have custody of the child, and
that Justesen disappeared with the child and kept her in another state for
a protracted period of time.
Justesen, testifying in her own defense, described the events that led her
to believe KS was sexually abusing the child. She said that after
returning from her stays with KS, the child would resist washing her
genital area, her genitals were red and irritated, she uncharacteristically
wet her pants, and appeared to be traumatized. She described this behavior
as ongoing from 1996 through 1999. She testified that the child, at age
two and a half, came up to her with a stick and said 'I'm going to put this
in your hole . . . it's okay, it won't hurt you'.4 On one occasion the
child reportedly said her father gave her cake 'when I let him fingernail
me.'5 On another occasion, while taking a bath, the child reportedly told
Justesen 'daddy . . . puts oil on his pee-pee and massages inside me'.6 A
woman who lived with Justesen at the time testified that she too overheard
the child make this statement.
A pastor with a local women's shelter testified that the child returned
from a visit with KS and appeared to have some sort of discharge in her
underwear. She said she advised Justesen to take the girl to the emergency
room for a sexual assault examination. The emergency room pediatrician who
examined the child at that time testified that he observed a small red spot
on the girl's labia and noted that her hymenal opening was a little larger
than normal. The doctor said that given the mother's fears of sexual
abuse, he too was concerned. He checked the child for indications of
semen, but found none. Justesen also told the jury about an incident when
she saw what she described as a 'bloody tear' on the child's labia.
According to Justesen, the girl told her that 'dad put his face in her
bottom.'7
Justesen and her former housemates testified that the child was reluctant
to go to the residence of KS and would appear upset upon coming back.
Justesen's former boyfriend described the child as being non-communicative,
withdrawn, 'floppy'8, and having frequent nightmares on these occasions.
Justesen said she considered these behaviors to be additional signs of
ongoing sexual abuse.
The topic of the polygraph test first emerged during Justesen's testimony
on direct examination. She explained that in January 1997, she refused to
turn her daughter over to KS for a visit because of her concerns about
sexual abuse. She said the police responded to this incident by telling
her KS had passed a polygraph examination and that she must comply with the
parenting schedule. She said she again spoke to police about her fears in
October 1997. According to Justesen, the officer 'mentioned the polygraph
and he mentioned all that had been done to investigate the case and he was
saying that they've done what they can.'9
The prosecutor's cross-examination of Justesen implied that she was
unreasonable in being unwilling to accept the results of the polygraph:
{The prosecutor}: What do you know about polygraphs?
{Justesen}: Not much.
{The prosecutor}: You got that information, though, and you were willing
to disregard it; is that correct?
{Justesen}: I turned her over and I never stopped believing my child over
a polygraph or two or three vague questions that could have been construed
in one's mind in one way or the other.
. . .
{The prosecutor}: At that point in time you realized that it was something
that might indicate that {KS} was being truthful?
{Justesen}: I did not regard the polygraph. I complied with Detective
Johnston's orders as well as the judge's and I never stopped believing my
daughter.
{The prosecutor}: You've never run into somebody who had been subjected to
a polygraph; isn't that correct?
{Justesen}: No.
{The prosecutor}: And you were aware of the fact that {KS}, as soon as he
learned of the new allegations, volunteered to take the polygraph?
{Justesen}: Yes.
{The prosecutor}: In fact, as soon as he became aware of them, it was just
a matter of days before he reported to the Bellingham Police Department and
subjected himself to that?
{Justesen}: Apparently.
{The prosecutor}: And you realize that was in fact the Bellingham Police
Department that administered the polygraph?
{Justesen}: Yes.
{The prosecutor}: And did you have any reason to believe that it had been
administered by anyone other than a trained polygraph examiner?
{Justesen}: No because I was informed by Detective Johnston that he had
passed and therefore - -
. . .
{The prosecutor}: So you didn't have any reason to believe that the
process which was followed in administering the polygraph was flawed?
{Justesen}: I had reasons to believe that it was.
{The prosecutor}: That the process which was followed in administering the
polygraph was flawed?
{Justesen}: It was sometime later that I read the questions on the
polygraph and I didn't believe that they addressed probable cause.{10}

The State presented a number of rebuttal witnesses, including Detective
Hutchings, the polygraph examiner for the Bellingham Police Department.
Hutchings testified to his training and experience in administering
polygraph examinations. He explained how the polygraph equipment works,
describing at length the method of questioning and how it is used to
evaluate the truthfulness of the subject. He testified that computer
analysis of the polygraph charts reported 'as low a probability of
deception as the computer program chart evaluations will allow.'11 The
trial court admitted the computer-generated report as an exhibit over
Justesen's objection.
The State completed its rebuttal case with testimony by KS. He described
incidents that suggested Justesen was making up allegations of sexual abuse
in order to avoid having to cooperate with him in a parenting plan. The
last two questions the prosecutor asked KS went directly to whether the
allegations of sexual abuse were true: 'Have you ever put your hand on
{the child's} vaginal area for sexual gratification?' and 'Have you ever,
for other than parental reasons, touched {the child's} vaginal area?' KS
answered 'No' to both questions.12
The prosecutor did not mention the polygraph in the initial closing
argument. Justesen, in her closing statement, argued that the evidence of
past sexual abuse supported a finding that at the time she left with her
daughter, she had a reasonable fear that further sexual abuse was imminent.
The prosecutor in rebuttal acknowledged that 'the heart of the case'13 lay
in whether or not KS had actually had sexual contact with his daughter.
The prosecutor, summarizing the evidence at length, argued that it cast
doubt on Justesen's motives and showed KS to be credible when he denied
committing acts of sexual abuse.
The polygraph, the prosecutor claimed, 'is a tool, is something that can be
used to sort of decide whether someone is telling the truth.'14 The
prosecutor reminded the jury that KS voluntarily and promptly subjected
himself to the polygraph examination, and the results unambiguously showed
no deception. Justesen, the prosecutor argued, unreasonably disregarded
this information:
The very next morning {KS} is down there, he's got his arms hooked up to
the wires of this thing, the indignity of this is amazing but it shows the
humbleness of this man, the willingness of this man to do whatever he needs
to do to try to clear his name.
. . .
But when we get to this part of the case, Miss Justesen would have you
believe that it's meaningless, that's what she testified to, it doesn't
mean a darn thing. So what that the guy goes down and takes a polygraph.
Everybody knows people can fail polygraphs. Well, why wouldn't Miss
Justesen as a reasonable person, that's what she wants you to believe,
she's a reasonable person, what would be so hard about finding out a little
bit more? What would be so hard about calling up Detective Hutchings and
saying gosh . . . I have had the child in for . . . all these things, that
is ambiguous, what did you do? What did you ask him? What did he say?
Isn't it possible that maybe if I learned some more about this I will be
able to understand the situation? But she would have none of it and this
is a great example about how she's very consciously disregarding
information and that goes into your equation of reasonable. What she says
is good liars can pass it anyway.{15}

The prosecutor asked the jury to conclude, based on all the evidence, that
'there was no real true belief in harm going on to the child.'16
The jury brought in a verdict of guilty. This appeal followed.
DISCUSSION
The State argues that because Justesen was first to elicit evidence of KS's
polygraph test, she waived the right to complain of it on appeal. This
argument fails. Waiver is the voluntary relinquishment of a right. 'A
defense lawyer who introduces preemptive testimony only after losing a
battle to exclude it cannot be said to introduce the evidence voluntarily.'
State v. Vy Thang, 145 Wn.2d 630, 648, 41 P. 3d 1159 (2002). Having
preserved the issue through her unsuccessful pretrial motion, Justesen was
entitled to introduce the evidence herself as a preemptive strategy.
Polygraph evidence is liable to be prejudicial and therefore should be
admitted only when clearly relevant and unmistakably nonprejudicial.
Descoteaux, 94 Wn.2d at 38-39. The prejudicial effect of polygraph
evidence in a criminal prosecution is illustrated in a murder case, State
v. Sutherland, 94 Wn.2d 527, 617 P.2d 1010 (1980). Brian Gjerde, the
State's principal witness against the defendant, was initially the prime
suspect in the investigation of the murder at issue. Defense cross-
examination of the investigating officer raised questions about the quality
of the officer's work on the case and implied he had not been thorough in
his investigation of Gjerde. Over the defendant's objection, the State was
allowed to elicit on redirect the officer's testimony that he had given
Gjerde two lie detector tests during the course of the investigation.
The reviewing court reversed the conviction on the basis that the polygraph
evidence impermissibly fortified the testimony of the witness. Sutherland,
94 Wn.2d at 530. 'The jury could scarcely conclude other than that Gjerde
was telling the truth and that the police investigators believed him. . . .
The error was compounded by the prosecution's reference to the polygraph
tests during its closing argument.' Sutherland, 94 Wn.2d at 531.
The State, arguing that Reay rather than Sutherland is the applicable
precedent, compares Justesen to the medical examiner in Reay who considered
polygraph evidence along with many other pieces of evidence before deciding
that the decedent was not a murder victim. But this is not a case where
the central issue was the thoroughness of a professional investigation.
Like Sutherland, it is a criminal case where the ultimate issue was guilt.
KS was a critical witness against Justesen and the jury had to decide
whether or not he was telling the truth. An obvious inference was that KS,
by taking the polygraph, had satisfied police investigators that he was not
guilty of child molestation. This inference strongly, and impermissibly,
fortified his testimony.
The court attempted to neutralize the polygraph evidence by giving the
following limiting instruction:
You have heard testimony concerning the use of a polygraph in this case.
There is scientific dispute about the reliability of the polygraph. The
polygraph is not generally accepted in the scientific community as
reliable.
Based on the current scientific data supplied to the court of this state,
the polygraph has not been shown to be sufficiently reliable as an
indicator of truthfulness to be admissible in court proceedings.
However, the polygraph is used by law enforcement as an investigatory tool
and you may consider its use here in evaluating the conduct and
investigation carried out by law enforcement. You may also consider it in
evaluating the reasonableness of the defendant's beliefs.
You are instructed that the result of the polygraph of {KS} may not be
considered as reliable evidence that {KS} did or did not subject {his
daughter} to sexual abuse.
You may accept or reject the polygraph evidence in whole or in part in
accordance with your views as to the persuasive character of that
evidence.{17}

The limiting instruction was ineffective. It told the jury not to consider
the polygraph as reliable evidence that KS did or did not commit sexual
abuse, but at the same time it explicitly invited the jury to consider the
polygraph in evaluating the reasonableness of Justesen's belief. These two
messages were inconsistent. The jury's evaluation of the reasonableness of
Justesen's belief, as the State's argument recognized, depended in large
part on their evaluation of whether KS was credible when he denied having
sexual contact with his daughter. As the Reay court recognized, polygraph
evidence cannot be used to establish that one party's version of events is
the truth:
If the polygraph evidence is being introduced because it is relevant that a
polygraph was administered regardless of the results, . . . then the
polygraph evidence may be admissible as an operative fact. If, on the
other hand, the polygraph evidence is offered to establish that one party's
version of the events is the truth, the polygraph evidence is being
introduced for its substantive value and is inadmissible absent a
stipulation . . . .

Reay, 61 Wn. App. at 149-50 (quoting Brown v. Darcy, 783 F.2d 1389, 1397
(9th Cir. 1986)).
We conclude the trial court abused its discretion in admitting the
polygraph evidence.
As in Sutherland, the prejudice was compounded by the State's cross-
examination and closing argument. The limiting instruction inspired the
prosecutor to argue that the polygraph can be used to decide whether
someone is telling the truth. This is exactly what the law rejects.
Polygraph evidence is inherently unreliable as an indicator of deception.
Inherently unreliable evidence is not relevant, and this 'is especially
true where the evidence is as seductive as the polygraph; a machine that
purports to test truthfulness.' State v. Ahlfinger, 50 Wn. App. 466, 472-
73, 749 P.2d 190, review denied, 110 Wn.2d 1035 (1988).
The State suggests that Justesen exacerbated the prejudice of which she now
complains, by eliciting unnecessary details about the mechanics of the
polygraph. But the bare fact that KS took and passed the polygraph test
was the primary source of prejudice; once that information was in, it would
have been very difficult to minimize. Having procured the improper
admission of polygraph evidence over Justesen's objection, the State is not
in a position to argue that she caused the prejudice.
An evidentiary error which is not of constitutional magnitude requires
reversal only if the error, within reasonable probability, materially
affected the outcome. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270
(1993). In this case the error was not harmless. Justesen and other
witnesses reported observing troubling behavior and comments by the child.
Medical professionals and other investigators took the allegations
seriously despite the lack of conclusive physical evidence. The State did
present sufficient evidence apart from the polygraph tending to rebut
Justesen's defense. For example, the child told a therapist her father had
not molested her, and 'my mom thinks my dad did. But he didn't.'18 But
much of this evidence involves credibility determinations or is
circumstantial, and we cannot be sure that the jury would have rejected
Justesen's defense if the polygraph evidence had not come in.
Under these circumstances, there is a reasonable probability that the
admission of the polygraph evidence materially affected the outcome of the
trial.
Justesen raises a number of issues pro se. To the extent that she
challenges the sufficiency of the evidence to convict, we find the evidence
sufficient. It is unnecessary to reach the other issues at this time.
Reversed and remanded for a new trial.

WE CONCUR:

1 The State charged Justesen with custodial interference in violation of
RCW 9A.40.060(2)(a) and (2)(c). Custodial interference in the first degree
occurs when a person takes, entices, retains, detains, or conceals a child
from a parent, guardian, institution, agency, or other person having a
lawful right to physical custody with the intent to deny access and either
(a) Intends to hold the child or incompetent person permanently or for a
protracted period; or . . . (c) Causes the child or incompetent person to
be removed from the state of usual residence. RCW 9A.40.060(2)(a), (c).
2 Verbatim Report of Proceedings, March 4, 2002 at 11.
3 Verbatim Report of Proceedings, March 4, 2002 at 19-20.
4 Verbatim Report of Proceedings, March 8, 2002 at 254.

5 Verbatim Report of Proceedings, March 8, 2002 at 261.
6 Verbatim Report of Proceedings, March 8, 2002 at 254.
7 Verbatim Report of Proceedings, March 8, 2002 at 321.
8 Verbatim Report of Proceedings, March 6, 2002 at 56.
9 Verbatim Report of Proceedings, March 8, 2002 at 324.
10 Verbatim Report of Proceedings, March 11, 2002 at 489-91.
11 Verbatim Report of Proceedings, March 14, 2002 at 855.
12 Verbatim Report of Proceedings, March 15, 2002 at 1120.
13 Verbatim Report of Proceedings, March 18, 2002 at 1211.
14 Verbatim Report of Proceedings, March 18, 2002 at 1241.
15 Verbatim Report of Proceedings, March 18, 2002 at 1242-43.
16 Verbatim Report of Proceedings, March 18, 2002 at 1261.
17 Instruction 12; Clerk's Papers at 62.
18 Verbatim Report of Proceedings, March 14, 2002 at 880.
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