JOSH M. BARRETT APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PIKE COUNTY CIRCUIT COURT [NO. 55CR-17-48] HONORABLE
TOM COOPER, JUDGE
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
BRANDON J. HARRISON, JUDGE
Barrett appeals his convictions for rape, arguing that the
circuit court erred in admitting the results of a polygraph
test. We affirm the circuit court's order.
2017, Barrett was charged with rape. He agreed to undergo a
polygraph examination pursuant to a written stipulation, and
the exam was administered on 30 August 2017. Before the exam
was complete, however, the examiner stopped the test because
he observed Barrett attempting to use physical
countermeasures to affect the outcome of the test. Barrett
admitted to biting his tongue, which is a known
underwent a second polygraph exam on 10 October 2017, again
pursuant to written stipulation. On 18 December 2017, Barrett
moved to exclude the results of the second polygraph exam,
asserting that the polygraph machine was defective and had
rendered inaccurate readings.
circuit court convened a hearing on 2 April 2018. Officer
Jake Bartlett, a licensed polygraph examiner, testified that
he had administered the polygraph exam to Barrett on October
10 and that Barrett had been recorded on video while taking
the exam. Bartlett explained that the polygraph results
showed that Barrett had been deceptive. The State played a
portion of a video of Barrett during the exam, and Bartlett
agreed that the video was not "fluid." However, he
stated, the camera is independent of the polygraph
instrument, and he had "never had any issues with the
camera affecting the test." On cross-examination, he
disagreed that the video showed "spaces and breaks"
but said that "maybe the pixels aren't as good on
this camera." Bartlett disagreed that it looked like the
voice and the lip movement in the video were not in sync, but
also said that even if the video was out of sync, it was
"only slight." He reiterated that he had never had
an issue with the polygraph software on his computer.
arguments to the court, defense counsel asserted that there
were "spaces and breaks" in the video and that the
results of the polygraph exam should be excluded due to the
possibility of an inaccurate reading. The State countered
that any issues regarding the video would go to the weight of
the evidence, not its admissibility. The circuit court found
that the parties had entered a valid stipulation and that any
problem with the video would go to the weight, not the
admissibility, of the exam results. At trial, the jury found
Barrett guilty of six counts of rape, and he was sentenced to
twenty-five years' imprisonment on each count, to run
consecutively. He now appeals the denial of his motion.
law prohibits the admission of polygraph-test results except
upon a written stipulation of the parties. Hayes v.
State, 298 Ark. 356, 767 S.W.2d 525 (1989). We review
allegations of evidentiary errors under the
abuse-of-discretion standard. Parker v. State, 333
Ark. 137, 968 S.W.2d 592 (1998). The circuit court has broad
discretion in its evidentiary rulings; hence, the circuit
court's findings will not be disturbed on appeal unless
there has been a manifest abuse of discretion. Id.
argues that his motion acted as a withdrawal of the
stipulation that he signed regarding the second polygraph and
that the circuit court abused its discretion in allowing the
polygraph results. He contends that implicit in the
stipulation was that "the test be done accurately and
competently and that there be an accurate record of what
happened." He asserts that the "defects" in
the polygraph exam are evident from the video and that the
circuit court erred in finding that any defects in the video
went to the weight of the evidence and not its admissibility.
In support of his argument, Barrett cites Holcomb v.
State, 268 Ark. 138, 594 S.W.2d 22 (1980) (reversing and
remanding because the parties' written stipulation
provided that the polygraph exam would be conducted by a
qualified polygraph examiner, and the employee who had
administered the exam admitted that he was not licensed by
the State to conduct polygraphs).
response, the State first contends that Barrett argues for
the first time on appeal that his motion acted as a
withdrawal of the stipulation. Addressing the merits of
Barrett's argument, the State disagrees that any problem
with the video recording of Barrett during the exam
invalidated the polygraph-exam results. The State argues that
Bartlett's testimony demonstrated that the video was not
part of the testing and could not physically have affected
the results; and Barrett presented no evidence in response to
Bartlett's testimony. Consequently, the circuit court did
not abuse its discretion in allowing the polygraph-exam
results into evidence.
State is correct that Barrett argues for the first time on
appeal that his motion acted as a withdrawal of the
stipulation. We do not address new arguments raised for the
first time on appeal. Petty v. State, 2017 Ark.App.
347, 526 S.W.3d 8. Moreover, Holcomb does not
support Barrett's contention because in that case, the
defendant filed a withdrawal of his stipulation and
a motion to suppress.
bottom line is that Barrett essentially asks this court to
assume that any defect in the video of him undergoing the
polygraph exam necessarily affected the polygraph exam
itself, but he offered no proof to support that assumption.
Even if we were to agree that the stipulation contained an
"implied" provision that the exam would be
performed accurately, Barrett presented no evidence that the
exam was administered ...