Morgan v. Com.

• Decision Date: 11 April 1991
• Docket Number: No. 90-SC-236-MR,90-SC-236-MR
• Parties: Michael Mark MORGAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 704

809 S.W.2d 704

Michael Mark MORGAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-236-MR.

Supreme Court of Kentucky.

April 11, 1991.

Rehearing Denied July 3, 1991.

Don H. Major, Major & Vanarsdale, Louisville, for appellant.

Frederic J. Cowan, Atty. Gen., Valerie L. Salven, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

LAMBERT, Justice.

In this matter of right appeal we will review two of the three issues presented by appellant wherein he claims to have been the victim of prejudicial error. Appellant's third issue concerns his claim of entitlement to a directed verdict, a claim we believe to be without substantial merit.

The issues identified by appellant are whether the trial court erred in failing to grant his motion for mistrial after a prosecution witness mentioned that a polygraph machine was located in the room where appellant was interrogated, and whether the trial court erred in failing to suppress appellant's statements to the police.

Appellant was convicted of murdering his wife, Gretchen Morgan, and sentenced to thirty-eight years in prison. Gretchen Morgan died as a result of twenty-four stab wounds to her back. There were no defensive wounds. There was little physical evidence of a probative nature and the Commonwealth's case was based largely on motive (appellant was having an affair with another woman), opportunity and statements made by appellant in the course of a prolonged police interrogation in which he said he "hurt" Gretchen. Apart from appellant's inculpatory statements, it is doubtful that the Commonwealth could have survived a motion for directed verdict and at oral argument, counsel for the Commonwealth admitted there would have been no prosecution but for the statements. While it is not our role to evaluate evidence, this was clearly a close case.

In response to appellant's call, the police arrived at the crime scene at approximately 6:30 P.M. Appellant was present and after the police had made a preliminary investigation, appellant agreed to accompany Detective Wesley to the police station to give a statement. Beginning at about 9:30 P.M. and continuing for some forty-five minutes, appellant gave a tape-recorded statement which the parties agree was wholly exculpatory. After this statement was concluded, the police obtained appellant's agreement to take a polygraph examination. The polygraph examiner, Sergeant Howard, was called and the examination began at approximately midnight. The polygraph examination, which Sergeant Howard believed appellant failed, and post-polygraph interrogation by Sergeant Howard lasted until about 3:15 A.M. At that time and not in response to a question, appellant told Sergeant Howard that he "hurt" Gretchen. Sergeant Howard informed Detective Wesley of this admission and at 3:50 A.M., a second taped statement was taken from appellant in which he made a similar admission.

At trial, both of appellant's tape-recordled statements were presented to the jury. In addition, Sergeant Howard, a twenty-year police veteran, testified as to the substance of appellant's oral statement, but did not directly disclose that a polygraph examination had been administered.

In presenting its evidence, including appellant's statements, the Commonwealth was concerned that appellant would attempt to dwell on the substantial period of time consumed by the polygraph procedure and unaccounted for to the jury to suggest coercion. As appellant's first incriminating statement was not made until 3:15 A.M., after appellant had been subject to police interrogation for approximately eight hours, the police believed that appellant would attack the integrity of his own statements. It was necessary, therefore, for the police to account for the time without disclosing that a polygraph examination had been given. To accomplish this, counsel for the parties and the court constructed a charade whereby Sergeant Howard, the polygraph examiner, would be presented as a police officer who possessed "special interrogation skills." By this means, the jury would be informed that Sergeant Howard was called in to assist in the interrogation and he would be permitted to disclose appellant's incriminating statement made to him. Prior to his testimony, Sergeant Howard had been informed of the agreed-upon means of avoiding any reference to the polygraph examination and instructed to refrain from any mention of it.

Just as the police had suspected, on cross-examination of Sergeant Howard, appellant attempted to minimize the significance of his statement by showing the surrounding circumstances. Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). Appellant's counsel asked Sergeant Howard if there was a two-way mirror in the room where he interrogated appellant. Instead of answering the question directly, Sergeant Howard obligingly asked counsel if he wanted him to describe the room. The Commonwealth's Attorney, sensing danger, asked to approach the bench and informed the court that the question might elicit a response which included a reference to the polygraph. The Commonwealth asked the trial court to require appellant's counsel to withdraw the question. The trial court refused this request, but stated emphatically that if polygraph was mentioned, everybody was going home, meaning we assume, that a mistrial would be declared. Upon conclusion of the bench conference, appellant's counsel asked Sergeant Howard to proceed with his description of the room. Sergeant Howard, who had not participated in the bench conference, replied that the "room has a desk, it has a polygraph instrument on top of the desk, it has two chairs, painted a pleasant color, has a two-way mirror in the room." Appellant moved for a mistrial and the motion was overruled.

The decisions of this Court are clear that the results of polygraph examinations are unreliable and are therefore inadmissible in evidence. Stallings v. Commonwealth, Ky., 556 S.W.2d 4 (1977). Baril v. Commonwealth, Ky., 612 S.W.2d 739 (1981). Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974). Because of the peculiar nature of polygraph examination, however, and its inherent propensity to influence the jury, we have gone further and held that the mere mention of the taking of a polygraph examination without disclosure of the result is likewise error. Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984). Perry v. Commonwealth, Ky., 652 S.W.2d 655 (1983).

The question presented in this case requires us to examine the next step and determine whether the mere disclosure that an interrogation took place in a room containing a polygraph instrument was error, and if so, whether it requires reversal. To answer the question presented, it is necessary to consider it in the context of this case and our decision should not be regarded as announcement of a bright line rule.

In context, we believe Sergeant Howard's telling the jury that the interrogation took place in a room with a polygraph instrument amounted to a virtual banner headline that appellant had been given a polygraph examination. It should be recalled that Sergeant Howard was described as an officer with "special interrogation skills" and one must wonder what the jury thought those skills were. If the conclusion had not occurred to the jury until then, with the mention of the word "polygraph," the clouds must have parted and the sun shone through. We are persuaded that the description of Sergeant Howard's skills, coupled with the disclosure of appellant's interrogation in a room containing a polygraph instrument, led straightaway to the conclusion that a polygraph examination was given.

The Commonwealth relies on this Court's decision in McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984), cert. denied 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 in which we held an indefinite, ambiguous reference to "polygraph examiner" was not prejudicial error. We noted that there was no statement that any such test had been administered and that it was vague as to whom, if anyone, it had been administered. We said, "There must arise a clear inference that there was a result and that the result was favorable, or some other manner in which the inference could be deemed prejudicial." Id. at 522. Unlike McQueen, there could be no doubt here that if a polygraph examination was given, it was given to appellant. Moreover, and as earlier stated, the facts are ample to create a "clear inference" that a test was given. After such an inference was created, the subsequent failure to inform the jury of any result brought about an additional inference that appellant failed the test.

For the purpose of our decision, it is unnecessary to determine whether Sergeant Howard's mention of "polygraph instrument" was willful. Nevertheless, it strains our credulity to believe that a twenty-year police veteran who was trained as a polygraph examiner, and had testified in numerous criminal trials, would not know, particularly when he had been told to refrain from any such reference, that any mention of the word "polygraph" or "polygraph instrument" would imperil the result achieved at trial.

We have previously indicated our view that an inference arose that appellant took and failed a polygraph examination. If the evidence of guilt was otherwise compelling, we would undertake a thorough harmless error analysis. CR 61.01. We have previously said, however, that such was not the case here. While the Commonwealth's evidence of appellant's guilt, if believed, was sufficient to sustain the verdict, it was far from overwhelming. As such, we are unable to conclude that the polygraph error was harmless. Reversal for a new trial is required.

By pretrial motion, appellant sought suppression of his statements made to the police in the early morning hours and after the polygraph examination. Testimony at the suppression hearing consisting of more than six hours was heard and the witnesses...