Lusby v. State

¶1filed the following dissenting opinion.

¶2I agree with the majority opinion on all matters other than the amount of prejudice to the defendant created by the state’s attorney’s persistence in “getting to the jury” the information that both the defendant and the prosecuting witness had taken lie detector (polygraph) tests and that he desired to offer the results of those tests. When the question concerning the fact that the prosecuting witness had taken such a test was first asked her, the trial court very properly sustained an objection to the question, but failed to grant a motion by the defendant for a mistrial. The state’s attorney, thereafter in spite of the previous ruling by the court that such evidence was inadmissible, asked practically the same question in the presence of the jury. He asked Sergeant Gray if the defendant and the prosecutrix had submitted to the tests. In addition, the record makes it plain that there were lengthy conferences at the bench relating to the admissibility vel non of this evidence. This was most damaging to the defendants case. It was obvious to all, including the jury, that the defendant and the prosecuting witness both had been subjected to lie detector tests, and the results were favorable to the state’s attorney’s case; otherwise, he would not have stubbornly pressed for their admission.

¶3What was the purpose of the state’s attorney in bringing these tests to the attention of the jury, not only a first but a *202second time, after the court had ruled that they were inadmissible and instructed the jury to disregard them? This persistence was prompted, unquestionably, by a realization that the state had to rely entirely upon a seventeen year old prosecuting witness, alone, in order to obtain a conviction; consequently, the state was sorely pressed to bolster its case from any quarter available. In my opinion, it was this inherent weakness in the state’s testimony that rendered the trial court’s refusal to grant the defendant’s motion for a mistrial error. More will be said concerning this later.

¶4In dealing with situations of this nature, our predecessors stated the rule in Nelson v. Seiler, 154 Md. 63, 72, 139 A. 564, as follows:

“Generally, the choice of measures to protect the fair, unprejudiced, working of its proceedings is left to the discretion of the trial court, and only in exceptional cases will its choice be reviewed in this court. In the greater number of instances the injection into a trial of matter other than that involved in the issue to be decided is cured by withdrawal of it and an instruction to the jury to disregard it, but there may, of course, be instances in which it would not be cured in this way, and terminating the trial and taking the case up afresh before another jury would be the only adequate means of correction. Those instances are exceptional, but they do arise. Waldron v. Waldron, 156 U. S. 361, 363; State v. Moran, 99 Conn. 115; Review of decisions in L. R. A., 1918D, 4; Balto. & O. R. Co. v. Boyd, 67 Md. 32, 42; Garlitz v. State, 71 Md. 293, 305; International Co. v. Clark, 147 Md. 34, 42; Duffy v. State, 151 Md. 456; Thompson on Trials, secs. 960, 965 … On appeal this court is concerned only with the effect on the appellant’s rights; and he was in effect denied the protection of rulings of the court, evidence not to be considered in the decision of the issue being tried was persistently given to the jury by counsel and its damaging tendency enlarged upon; *203… And it would seem to follow by equal reasoning that, if prejudicial misconduct is such that it could not be adequately cured by an instruction, a refusal of the only measure of protection left to the moving party, a termination of the trial, should be reviewable on appeal. This is in accord with conclusions adopted elsewhere. Waldron v. Waldron, 156 U. S. 361, 383. For these reasons we consider the overruling of the motion to have been reversible error.”

¶5In the case just quoted from, the trial court, as in the principal case, had overruled a motion for a mistrial by the defendant because of the insistence by the plaintiff’s counsel that certain evidence was admissible. Although the trial court had cautioned the jury to pay no attention to the questions asked and to draw no inferences from them, this Court held that the failure to grant a motion for a mistrial was reversible error, for the prejudicial misconduct could not be adequately cured by an instruction to disregard the question. It will be noted this was a civil case in which a money judgment only was obtained; in the case at bar, a man’s liberty is at stake, his long prison sentence depending upon the veracity of one witness alone.

¶6In McAllister v. State, 140 Md. 647, 118 A. 147, there was a similar holding in a case tried by the court, though not a ruling for failure to grant a motion for a mistrial. At page 652, this Court said: “The questions … in themselves imputed to the witness the crime of forgery and imported a knowledge by the state’s attorney of the truth of the charge.” (Emphasis supplied.) In the instant case, the same thing happened. The state’s attorney’s insistence upon the admissibility of the evidence that the defendant and the prosecuting witness had taken lie detector tests imported his knowledge of the results of those tests and that they were favorable to the state. The McAllistercase was tried by the court, without the aid of a jury, and it was urged that in cases tried before the court, the strictness of the rules of evidence should be somewhat relaxed. This Court said at page 652: … we are unable to say … that the trial court prob*204ably was not unconsciously influenced by the objectionable questions and the answers to some of them.”

¶7In Duffy v. State, 151 Md. 456, 470, 135 A. 189, this Court made another similar ruling. There, the persistence of the attorney for the state in asking questions after he had been informed they were inadmissible was held to be reversible error. In quoting, with approval, from People v. Hamilton, 268 Ill. 400, it was said: “ ‘To each of these questions an objection was sustained, but the mere asking of such questions was prejudicial. There is no possible theory upon which it can be claimed that such an examination was competent, and it seems incredible that a state’s attorney should so far forget the duty devolving upon him in a criminal prosecution as to' adopt such methods to attempt to discredit a defendant and to endeavor to prejudice the jury against him.’ ”

¶8In Leeks v. State, 245 P. 2d 764, 770 (Okla.), the Court, of its own volition, raised the question of the objectionable nature of evidence concerning lie detector tests and held that such evidence materially affected the defendant’s right to a fair trial. In People v. Welke, 68 N. W. 2d 759 (Mich.), an officer, who had given a lie detector test to the defendant was permitted to testify as to the events that occurred between him and the defendant at the time of the test, but he did not testify as to the results of the test. This witness stated that during the course of the test he told the defendant he was lying, and this was held reversible error. In State v. Kolander, 52 N. W. 2d 458 (Minn.), it was held reversible error to allow testimony that a defendant refused to take a lie detector test.

¶9In People v. Wochnick, 219 P. 2d 70 (Cal.), a state’s witness was permitted to testify to a conversation had with the defendant during the course of a lie detector test on the defendant. The witness testified that when a knife, the murder weapon, was shown to the defendant there was a violent reaction on the graph, and then the witness related the conversation that he had had with the defendant. The trial court specifically instructed the jury that it could not consider that portion of the conversation that related to the lie detector test as indicating whether or not there was any reaction to any technical test. The appellate court held, however, that *205the damage had been done; the judgment was reversed and a new trial awarded. The Court said: “Despite the instruction of the court, the evidence of the partial results of the lie detector test with respect to defendant’s reaction upon being shown the murder weapon was indelibly implanted in the minds of the jurors and could not have but had a prejudicial effect.”

¶10This Court has not heretofore had occasion to pass upon the question of the admissibility of the results of a lie detector test. The rationale of the out-of-state cases, briefly stated, would seem to be as follows. It is almost universally held that the results of such tests are inadmissible, in the absence of stipulation by the parties, whether offered by the state or proffered by the defendant.1Henderson v. State, 230 P. 2d 495 (Okla.), and the cases and authorities named therein; Cf. 3 Wigmore, Evidence, (3rd ed.) sec. 998. There seems to be only one reported case to the contrary, which was not appealed. People v. Kenny, 3 N. Y. S. 2d 348, 350. Where the results of the test have not been revealed and the state has taken the initiative and produced testimony showing that a lie detector test had been administered, it is not prejudicial if used as a step in connection with proof of the voluntary nature of a confession, Tyler v. United States, 193 F. 2d 24, 31, or if the results are favorable to the defendant, LeFevre v. State, 8 N. W. 2d 288, or if there be other independent evidence, properly admitted, that is highly unfavorable to the defendant, and which is likely to have a strong influence upon the jury, Tyler v. United States, supra.Such evidence, however, is or is not prejudicial and grounds for reversal depending upon the facts and circumstances of each case, where there is a lack of other strong evidence against the defendant and the conviction rests upon questionable or *206circumstantial evidence. State v. Kolander, supra; State v. Sheppard,2128 N. E. 2d 471 (Ohio).

¶11The above conforms to the rule laid down by this Court in the Maryland cases first cited herein; so, the facts of the case at bar will be considered in the light of that rule. The facts of this case are unusual to the extent that the conviction rests entirely upon the truthfulness of a seventeen year old daughter of the defendant. She claimed the illicit association with her father occurred over a period of several years-There were other children in the family. No witness, including these other children, testified to having seen the slightest intimation that there was any undue interest by the father in this daughter. There is not a shred of evidence to corroborate her story other than the fact, if it may be called corroboration, that she had a “marital vagina.” She frankly admitted that she had had intercourse with her “boy friend.”

¶12In a situation of this kind where the offense is claimed to have taken place in the home late at night, the defendant is in an extremely difficult and dangerous position. It is impossible for him to offer witnesses directly to refute the accusation ; his only possible recourse is personally to deny it. The trial court, recognizing the obviously perilous position of the defendant, should have jealously guarded his rights to a fair and impartial trial. The state’s attorney realized the weakness of his evidence, and, although objections to his questions-were sustained, successfully conveyed to the jury that these tests had been given to both the prosecuting witness and the defendant, and the results of those tests were favorable to-the state. This was doubly injurious and prejudicial to the defendant: not only was such evidence inadmissible, but when conveyed to laymen without any information as to the dependability of such tests, there is no way to measure the weight that the jury may have given such tests. They may well have considered the results as conclusive of guilt, even though the reason for their inadmissibility is their lack of *207accuracy and reliability. As was stated by the Court in the Kolander case, supra, 52 N. W. 2d at page 465: “The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test … Theoretically it may be said that the defendant was not denied a fair and impartial trial, because the court instructed the jury to disregard the objectionable evidence; but the Courts should exercise at least a reasonable amount of practicality in the rendition of their judgments. In a situation of the kind we have in the instant case, can it be said that the court’s admonition to the jury to disregard the references to the fact that lie detector tests had been made was effective in erasing the impression made upon the minds of the jury by the state’s attorney that such tests had been made and the results were favorable to the state’s case? Empirically speaking, it was about as effective as informing a three year old child, who has just received a handful of lollypops from a large, jolly, rotund, white-whiskered man dressed in red as he alighted from a sleigh drawn by eight reindeer, that there was no such personage as Santa Claus. I think the case is a classic illustration for invoking the rule previously stated and applied by this Court, and the case should be remanded for a new and, this time, an impartial trial.