may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
File No. 94017931
Barry V. Voss, Voss & Hickman, P.A., 527 Marquette Ave. S., Suite 840, Minneapolis, MN 55402 (for appellant)
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Asst. County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant challenges the denial of his postconviction petition requesting an evidentiary hearing on the admissibility of polygraph evidence. Because we see no abuse of the postconviction court's discretion, we affirm.
Appellant Garey Ledin was convicted of one count of first-degree criminal sexual conduct and three counts of third-degree criminal sexual conduct and sentenced to 182 months in prison. On appeal, this court affirmed the conviction. State v. Ledin, No. C3-95-1079 (Minn. App. Feb. 27, 1996).
Four months after losing his appeal, appellant underwent two polygraph examinations. The administrator of the polygraph examinations concluded that appellant was not being deceptive when he asserted that he had consensual sex with both victims. Based on the polygraph examination results, appellant filed a petition for postconviction relief requesting a new trial or an evidentiary hearing to assess the admissibility of the polygraph examination results. The postconviction court denied the petition.
"This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).
Polygraph examination results are not admissible in Minnesota criminal actions because there is insufficient evidence of their reliability. State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985) (relying on Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding that expert testimony must "have gained general acceptance in the particular field in which it belongs" in order to be admissible)). In 1993, however, the Supreme Court rejected the Frye standard for admission of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 2794 (1993) (holding that the general acceptance test established in Frye no longer applies to federal trials). Appellant argues that he is entitled to an evidentiary hearing to address the admissibility of polygraph evidence because the per se rule against polygraph evidence was reversed when the Supreme Court rejected Frye.1 We disagree.
"[O]nly where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided will postconviction relief be allowed." Case v. State, 364 N.W.2d 797, 800 (Minn. 1985); see also Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (holding that an evidentiary hearing is not required unless the petitioner alleges facts that, if proven, would entitle the petitioner to the requested relief).
We recognize the development in the law regarding the admissibility of polygraph evidence in the wake of Daubert.2 Daubert was released in 1993, however, and appellant's trial was held in 1995. Appellant does not argue that the polygraph evidence or his legal theories regarding polygraph evidence were not available at the time of trial. Because postconviction relief is available only to those who put forth "novel" claims that were not "reasonably available" at the time of direct appeal, appellant is not entitled to a postconviction evidentiary hearing.
Even if appellant's argument were timely, the fact that appellant may have been telling the truth would not change the fact that his victims had very different subjective beliefs as to the consensual nature of the intercourse. See State v. Ledin, No. C3-95-1079, slip op. at 2, 3 (Minn. App. Feb. 27, 1996) (at trial, both victims testified that they were raped by appellant). Even if appellant believed that his contact with the victims was consensual, the victims' testimony alone would be sufficient to convict him. See State v. Halvorson, 506 N.W.2d 331, 335 (Minn. App. 1993) (holding that a victim's uncorroborated testimony alone is sufficient to support a conviction for sexual assault); see also Minn. Stat. § 609.347, subd. 1 (1996) (sexual assault complainant's testimony need not be corroborated).
The postconviction court did not abuse its discretion in denying appellant's request for an evidentiary hearing.
1 State v. Klawitter, 518 N.W.2d 577, 578 n.1 (Minn. 1994), declined to express an opinion on the continued validity of the Frye test or to address the effect of Daubert on the application of the Frye test in Minnesota.
2 Numerous courts have removed the per se rule excluding polygraph evidence. See, e.g., United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997) (holding that Daubert "effectively overruled" the per se rule against admission of unstipulated polygraph evidence); United States v. Posado, 57 F.3d 428, 429 (5th Cir. 1995) (removing the per se rule against admissibility of polygraph test results in light of Daubert); Chatwin v. Davis County, 936 F.Supp. 832, 838 (D.Utah 1996) (holding that Daubert requires a modification of the Tenth Circuit's position on the general inadmissibility of polygraph evidence); United States v. Galbreth, 908 F.Supp. 877, 878 (D.N.M. 1995) (holding that expert opinion evidence regarding polygraph examination results was admissible under a Daubert analysis); United States v. Crumby, 895 F.Supp. 1354, 1361 (D.Ariz. 1995) (holding that polygraph evidence is sufficiently reliable under Daubert to be admitted as scientific evidence under Fed. R. Evid. 702).
 We note that the Supreme Court recently granted certiorari on the issue of whether a defendant has a Sixth Amendment right to offer polygraph evidence in presenting a complete defense. United States v. Scheffer, 44 M.J. 442, 446-47 (C.A.A.F. 1996), cert. granted, 117 S. Ct. 1817 (May 19, 1997). However, the defendant in Scheffer offered polygraph evidence during the trial to counter statements by the prosecutor that defendant was a liar. Even assuming appellant had a Sixth Amendment right to present polygraph evidence at trial, he would not be entitled to invoke that right after the conclusion of his trial and his appeal.
 Respondent argues that expert testimony from a polygraph examiner in this case would constitute improper vouching for appellant's testimony. Appellant asserts that the testimony is proper because the expert is testifying only that appellant's statements did not indicate deception. See Scheffer, 44 M.J. at 446 ("[A] properly qualified expert, relying on a properly administered polygraph examination, may be able to opine that an accused's physiological responses to certain questions did not indicate deception"). Even if we were to accept appellant's argument, the evidence sought to be introduced is not newly discovered evidence and does not warrant an evidentiary hearing.