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People v. Alves2/26/2003
FACTUAL AND PROCEDURAL BACKGROUND
For about two months, Joseph Allen Alves cared for a friend's twin three-year-old sons in her home while she was in a hospital for a back injury and in a treatment program for alcoholism. She could not stop drinking, however, so for the next four or five months the twins lived in a foster home and she had visitation. For the first time, she observed inappropriate sexual behavior in the twins. After they told her they had learned that behavior at the foster home, she called child protective services (CPS).
One of the twins told a CPS worker, "`I suck pee-pee; he gave me candy.'" The CPS worker asked, "Who?" He replied, "`Joseph.'" The other twin told a detective , "`Joseph suck my pee-pee,'" and, "`I suck Joseph's pee-pee.'" "Joseph" was the foster father's first name as well as Alves's first name. A nurse qualified as a sexual assault examiner observed in both twins abnormalities consistent with sexual abuse. A jury found Alves guilty of two counts of committing lewd and lascivious acts on a child under the age of 14. (Pen. Code, ยง 288, subd. (a).)
ISSUE ON APPEAL
Before trial, the prosecutor informed the court and counsel that she had instructed her witnesses not to testify about the results of the polygraph examination the foster father had taken. On direct examination, she asked the foster father if the detective had asked him "to do anything in particular in connection with this investigation[.]" He testified, "I took a lie detector." Alves objected and moved for a mistrial. The court denied the motion.
As the only other "Joseph" who had access to the twins, Alves argues that the foster father's testimony prejudiced him since the jury probably made the inference that he had passed the polygraph examination. The Attorney General argues that Alves waived his right to appellate review by not requesting an admonition and, alternatively, that the record shows no prejudice. We will reverse the judgment.
DISCUSSION
1. The Record
Despite the statutory prohibition of the admission of evidence not only of the "results of a polygraph examination" but also of the "taking of a polygraph examination," the record shows that the court and counsel apparently thought the statute barred only the former and not the latter. Just before opening statements, the prosecutor addressed the court and Alves's counsel out of the presence of the jury:
"[Prosecutor]: ... First of all, [the foster father] took a polygraph. I absolutely concur that the result itself is not admissible evidence. I have instructed my witnesses not to make mention of that on the stand.
"The Court: [The foster father]?
"[Prosecutor]: That's correct, and I thought I would make that clear since the defense lawyer and I have spoken of that before. He has the same first name as the suspect in this case. Your Honor, I think it will become clear throughout the trial what I am getting at.
"The Court: Okay." During her direct examination of the foster father, the prosecutor sought to show his innocence of the molestation and his cooperation with law enforcement:
"[Prosecutor] Q: Now, I apologize in advance for asking you this question: Did you ever touch the boys in any type of sexual way?
"A: No, ma'am. [ ] ... [ ]
"Q: Now, at some point during the investigation of the reported sexual abuse involving [the twins], [the detective ] came down to Corcoran and talked to you; is that right?
"A: I came right here to Hanford to talk to him at the substation.
"Q: He called you and you agreed to come up
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