Murphy v. State

• Decision Date: 01 September 1994
• Docket Number: No. 1636,1636
• Parties: Lewis Harold MURPHY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 303

105 Md.App. 303

659 A.2d 384

Lewis Harold MURPHY v. STATE of Maryland.

No. 1636, Sept. Term, 1994.

Court of Special Appeals of Maryland.

June 7, 1995.

Samuel A. Yee, Law Student (Ira Mickenberg, Assigned Public Defender, on the brief), Washington, DC, for appellant.

Rachel Marblestone Kamins, Staff Atty. (J. Joseph Curran, Jr., Atty. Gen., and Gwynn X. Kinsey, Jr., Asst. Atty. Gen., on the brief), Baltimore, for appellee.

Argued before BLOOM, MOYLAN and ALPERT, JJ.

ALPERT, Judge.

Sixty year-old Lewis Harold Murphy, appellant, was found guilty by a jury in the Circuit Court for St. Mary's County of child abuse, third degree sexual offense, and battery. The victim, Kristy Green, was six years old at the time of the incident. In this appeal, appellant presents the following issues:

I. Whether reversal is mandated when the actual results of a lie detector test are unlawfully admitted at trial and when appellant's credibility is a crucial issue.

II. Whether the State made unlawful references to a polygraph test when the issue of voluntariness of confession was not raised by the defendant and when the references were unduly prejudicial.

III. Whether the State violated the Equal Rights Amendment of the Maryland Declaration of Rights and the Equal Protection Clause of the United States Constitution when it struck two female jurors using peremptory challenges and when the State offered the explanation that the jurors either were not "sophisticated enough" or that there were too many women on the jury.

We answer "yes" to the first two issues presented by appellant and reverse. We need not address the third issue, since it may not arise on retrial.

Facts and Proceedings

On July 20, 1993, appellant was babysitting for Kristy Green while his girlfriend, Kristy's grandmother, went shopping. Appellant took Kristy to a nearby creek to catch crabs. According to Kristy, while they were sitting by the creek, appellant touched her vaginal area. When they returned to the house, Kristy's mother called. Kristy told her mother what appellant had done. Kristy and appellant then went back to crabbing. When they returned again to the house, Kristy's parents and several relatives were there. Kristy ran to her father. Appellant denied that he had touched Kristy and stated that all he had done was ask Kristy whether she called her vaginal area a "tweety" or a "bird." The police were called and appellant was questioned. Appellant told the police that Kristy had been jumping up and down on his lap and that he had merely patted her on the bottom to make her stop. He was not arrested at that time.

A few months later, appellant was questioned further by Detective John D. Horne of the St. Mary's County Sheriff's Office. During this meeting, appellant "failed" a polygraph test administered by Detective Horne. Appellant also gave a statement in which he confessed to touching Kristy in her vaginal area. During his confession, reference was made to the fact that appellant had "failed" the polygraph test:

[Detective] Horne: Have you told anybody else this story?

[Appellant]: All to the ah ... [Detective] Shoemaker.

[Detective] Horne: I mean did you ... when you talked to her did you tell her the truth like you talked to me?

[Appellant]: Well, I told it like I told in on there.

[Detective] Horne: I understand that and you told it you told when you took the polygraph.

[Appellant]: Yeah.

[Detective] Horne: You didn't pass the polygraph but ...

[Appellant]: I realize that.

(Emphasis added).

Appellant was arrested on December 9, 1993 and charged with third degree sexual offense, child abuse, and battery. Trial took place on July 19 and 20, 1994. During direct examination of Detective Horne, the prosecutor sought to admit into evidence a transcribed version of appellant's confession, including that portion of it that referred to appellant failing the polygraph test. Appellant's attorney objected and moved in limine to have the reference to the polygraph test excised from the statement. Appellant's attorney also requested that no mention of the polygraph test be made by the State until appellant raised the issue of the voluntariness of his confession. Appellant's attorney argued that until this issue was raised, any reference to the fact that a polygraph test was taken or any reference to the results of such test would be grounds for a mistrial. The trial court denied these motions and admitted the statement into evidence. The court also permitted Detective Horne to testify regarding his expertise in the administration of polygraph tests, and to testify concerning the waiver form that he witnessed appellant sign prior to taking the polygraph test. Appellant's attorney objected to each reference to the polygraph test by the prosecution and, at the close of the State's case, moved for a mistrial. This motion was, likewise, denied.

Appellant was found guilty on all charges and sentenced to ten years, with all but eighteen months suspended. He also received five years probation.

Admissibility of Polygraph Test

Appellant argues that it was reversible error for the trial court to have admitted any evidence of the polygraph test. He contends that he was unduly prejudiced by not only the reference to the results of the test but also by the numerous references during direct examination of Detective Horne to the fact that a test was administered.

It is well-settled in Maryland that the results of a polygraph test are inadmissible. Guesfeird v. State, 300 Md. 653, 658, 480 A.2d 800 (1984); Lusby v. State, 217 Md. 191, 194-95, 141 A.2d 893 (1958). ¹ The principle reason for excluding such evidence is that the polygraph has not attained that degree of general scientific acceptance as an accurate and reliable means of ascertaining truth to justify reliance upon it in a court of law. See Rawlings v. State, 7 Md.App. 611, 613-14, 256 A.2d 704 (1969) (holding for the first time that the results of lie detector tests are not admissible in Maryland courts). ² Indeed, mere references to the fact that a test was taken, without mentioning the results of the test, may be grounds for reversal if the results can be inferred from the circumstances or if the references are prejudicial. Guesfeird, 300 Md. at 659, 480 A.2d 800 (citing State v. Edwards, 412 A.2d 983, 985 (Me.1980)). ³ See also Johnson v. State, 303 Md. 487, 513, 495 A.2d 1 (1985); Lusby, 217 Md. at 195, 141 A.2d 893.

In State v. Hawkins, 326 Md. 270, 275, 604 A.2d 489 (1992), the Court of Appeals observed:

The reliability of [polygraph] tests has not been established to our satisfaction, and we have consistently refused to permit evidence with regard to them. In our system of criminal justice, the trier of fact is the lie detector, and we have been steadfast in disallowing that function to be usurped by a process we have not found to be trustworthy.

Mention at a criminal trial of the results of a polygraph test, or the taking of the test, or the willingness or unwillingness to take the test, raises the specter of reversal. In criminal prosecutions, the polygraph test is a pariah; "polygraph" is a dirty word.

(citation omitted).

Here, there is no question that the jury was made aware of the fact that appellant did not pass the polygraph test. In appellant's confession, a tape of which was played for the jury, it was stated:

[Detective] Horne: You didn't pass the polygraph but ...

[Appellant]: I realize that.

In addition, as appellant notes, the "fact" that he took a polygraph test was referred to numerous other times during the direct examination of Detective Horne by the State.

The State argues, however, that an exception to the general rule regarding the admissibility of polygraph tests is applicable in this case. This exception allows evidence of a polygraph test to be admitted where the voluntariness of a confession is at issue. Mitchell v. State, 51 Md.App. 347, 353, 443 A.2d 651, cert. denied, 293 Md. 617, cert. denied, 459 U.S. 915, 103 S.Ct. 227, 74 L.Ed.2d 180 (1982). Under this exception, the taking of a lie detector test may be considered by the jury in determining whether a confession, elicited prior to, contemporaneously with, or after the test, was freely and voluntarily given. The rationale for this exception is that the fact that a polygraph test was administered during police questioning of a suspect is no different than any "other potentially coercive condition, person or device present during interrogation." Johnson, 31 Md.App. at 309, 355 A.2d 504. "The jury must have the opportunity to consider all of the evidence pertaining to the voluntariness of a confession before deciding the question of guilt or innocence." Id. (emphasis in original).

In Johnson, the defendant sought to have the fact that he was subjected to a polygraph test during his interrogation submitted to the jury in order to support his allegation that his confession was involuntary. Id. at 306, 355 A.2d 504. The trial court denied the defendant's request, and on appeal we held that the exclusion of such evidence was reversible error. Id. We noted that the test given to the defendant was a psychological tool used by the police in the interrogation process and was therefore relevant to the voluntariness of his confession. Id. at 307-09, 355 A.2d 504.

In Mitchell, 51 Md.App. at 350, 443 A.2d 651, it was again the defendant who sought to admit evidence of a polygraph test. There, two polygraph tests were administered in order to verify statements the defendant made to the police. Id. at 353, 443 A.2d 651. The trial court ruled sua sponte that the jury could not be informed that the tests were given to the defendant. Id. at 350, 443 A.2d 651. We affirmed, holding that the court did not err in excluding such evidence. Id. at 353-54, 443 A.2d 651. We noted that the defendant did not claim that he was coerced into making the statements, but rather sought to have the fact that the tests were...