State v. Hawkins, 82

CourtCourt of Appeals of Maryland
Citation604 A.2d 489,326 Md. 270
Docket NumberNo. 82,82
PartiesSTATE of Maryland v. Dana Ashley HAWKINS. ,
Decision Date01 September 1991

Page 270

326 Md. 270
604 A.2d 489
STATE of Maryland
Dana Ashley HAWKINS.
No. 82, Sept. Term, 1991.
Court of Appeals of Maryland.
April 13, 1992.

[604 A.2d 491]

Page 273

Annabelle L. Lisic, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., both on brief), for petitioner.

Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender, both on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW and KARWACKI, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (Retired), Specially Assigned.

CHARLES E. ORTH, Jr., Judge, Specially Assigned.

This appeal is about murder, and accessory after the fact, and instructions to the jury, and the common law, and the word "polygraph," which, when it crops up in a criminal prosecution, raises a red flag.

The case is briefly stated. A jury in the Circuit Court for Harford County found that Dana Ashley Hawkins was a principal in the murder of Dell Rose Noble, and that the murder was in the first degree as committed in the perpetration of a felony. It also found that she was an accessory after the fact to that murder. She was sentenced to a term of imprisonment for life on each conviction, the sentences to run concurrently. All but 15 years was suspended on the murder conviction and all but 10 years was suspended on the accessory conviction. The sentence on the accessory conviction is illegal, but the illegality plays no part in the resolution of this appeal. 1 The Court of Special Appeals vacated the judgments and remanded the case for a new

Page 274

trial. Hawkins v. State, 87 Md.App. 195, 589 A.2d 524 (1991). The State filed a petition for the issuance of a writ of certiorari. Hawkins filed a conditional cross-petition. We granted both petitions.

We must first determine Hawkins's cross-petition, for if she prevails, there is no need for us to address the State's petition. Hawkins declaims that the prosecution of her should have been aborted in the middle of the trial. The heart of her contention is that she was denied the fair trial to which she was entitled. See Crawford v. State, 285 Md. 431, 451-452, 404 A.2d 244 (1979). The basis of her contention is that during the examination of two of the witnesses against her, the verboten word "polygraph" crept into their testimony.

The red flag was raised when a police officer, Trooper James L. Mitchell, was testifying[604 A.2d 492] for the State on direct examination. He was recounting his interrogation of Hawkins in the police station. She gave conflicting versions as to who had killed Noble, changing from one Wayne Pickney to one Brian Bishop as the criminal agent. Mitchell "confronted her" with his belief that he "didn't believe that she was telling the truth about everything." She recanted her latest version and again named Pickney as the killer. Asked by the prosecutor what he then did, Mitchell responded, as shown in the transcript of his testimony:

I went out of my office into Sergeant Bane's office and told him what had happened. He came back into the polygraph suite--(witness slapped hand on witness table)--I'm sorry--came back into my office and said, told the Defendant that she was under arrest.

Page 275

The word "polygraph" next popped up during the State's direct examination of another police officer, Sergeant Paul D. Bane. Bane was describing Hawkins's reaction to her arrest:

She became very emotional. She began crying. It was necessary for Trooper Mitchell and I to physically carry the Defendant from the area next to the polygraph room to a cell area where she was placed.

At this point, defense counsel heeded the warning of the red flag. He moved for a mistrial. The court held its decision sub curia to research the law.


"[I]t is universally held that evidence of the defendant's willingness or unwillingness to submit to a lie detector examination is inadmissible." Kosmas v. State, 316 Md. 587, 593, 560 A.2d 1137 (1989), and cases therein cited. See also, Bohnert v. State, 312 Md. 266, 278, 539 A.2d 657 (1988); Johnson v. State, 303 Md. 487, 513, 495 A.2d 1 (1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 868, 88 L.Ed.2d 907 (1986); Guesfeird v. State, 300 Md. 653, 658, 480 A.2d 800 (1984); Poole v. State, 295 Md. 167, 182, 453 A.2d 1218 (1983); Kelley v. State, 288 Md. 298, 302, 418 A.2d 217 (1980). "We have resisted exhortations to admit evidence regarding polygraph tests." Bohnert, 312 Md. at 278, 539 A.2d 657. The reliability of such tests has not been established to our satisfaction, and we have consistently refused to permit evidence with regard to them. Kelley, 288 Md. at 302, 418 A.2d 217. 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.

We have reversed judgments of conviction when mention was made of the taking of a polygraph test or of

Page 276

the willingness or unwillingness of a defendant to take the test. See, for example, Kosmas, 316 Md. at 592, 560 A.2d 1137 and Guesfeird, 300 Md. at 658, 480 A.2d 800. Despite its status as a pariah, however, not all references to polygraph tests warrant reversal. See, for example, Johnson, 303 Md. at 513-515, 495 A.2d 1; Poole, 295 Md. at 182-183, 453 A.2d 1218; Lusby v. State, 217 Md. 191, 194-197, 141 A.2d 893 (1958). The question is one of prejudice to the defendant. See Kosmas, 316 Md. at 594-595, 560 A.2d 1137; Guesfeird, 300 Md. at 659, 480 A.2d 800. We note that the fact that the reference to a polygraph test is inadvertent does not alone insure that it is not prejudicial. Id. at 660, 480 A.2d 800.

After holding his decision on the motion sub curia, the judge denied it at the close of all the evidence. In so doing, he put the word "polygraph" in the context in which it was mentioned. He observed that when the word passed Trooper Mitchell's lips, the officer "paused in giving his testimony and reacted in a very unusual, shall we say, fashion." The judge noted that "[o]ne of the members of the court stated that he looked like he had been electrocuted." On the other hand, when Sergeant [604 A.2d 493] Bane used the word, he "did not react at all." Perhaps "a very, very slight pause, but even that is questionable." The judge concluded, "Anyway, there was nothing in his demeanor or course of his testimony to indicate there was any significance to that word." The judge stated his belief that

the Defense's motion is based on the combination of the two factors, the fact that Trooper Mitchell blurted it out, and Trooper Bane may have accentuated what Trooper Mitchell mentioned that they were in the vicinity of the polygraph room....

The judge concluded:

Considering the totality of the circumstances in this case, I believe there has been no irrefutable prejudice to

Page 277

the Defendant by the combination of the two references. The one that troubles me the most is by Trooper Mitchell, but it was very oblique. It was not clear to the jury, I believe, what he was referring to. The first remark was made a considerable time back, before last week, whenever. So that I believe that whatever "damage," may have been done by that reference did not prejudice the Defendant's case, and I don't think anything that Trooper Bane [said] in any way enhanced any damage that may have been done. So even taking the combination of the two references together, I don't think there's been any prejudice to the Defendant and I would deny the motion.

The trial judge characterized the utterances of the word "polygraph" as "blurts," and we are in full accord with that view. We are content with the finding of the trial judge, not skeptical as we were in Kosmas, see 316 Md. at 596, 560 A.2d 1137, that each officer's mention of the word "polygraph" was inadvertent, uttered abruptly and impulsively, with no nefarious intent. Our discussion of the applicable principles is in that context.

"Ordinarily, the decision whether to grant a motion for a mistrial rests in the discretion of the trial judge." Kosmas, 316 Md. at 594, 560 A.2d 1137, citing Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974) and Lusby v. State, 217 Md. at 195, 141 A.2d 893. See Bailey v. State, 303 Md. 650, 663, 496 A.2d 665 (1985). "[O]ur review is limited to whether there has been an abuse of discretion in denying the motion." White v. State, 300 Md. 719, 737, 481 A.2d 201 (1984). The general rule, well settled in Maryland, is that the trial judge has wide discretion in the conduct of a trial and that the exercise of discretion will not be disturbed unless it has been clearly abused. Crawford v. State, 285 Md. at 451, 404 A.2d 244. "The principle that the overall direction of the trial is within the sound discretion of the trial judge encompasses the admission of evidence." Id.

The assumed proposition that judges are men of discernment, learned and experienced in the law and capable of

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evaluating the materiality of evidence, lies at the very core of our judicial system.

State v. Babb, 258 Md. 547, 550, 267 A.2d 190 (1970).

The fundamental rationale in leaving the matter of prejudice vel non to the sound discretion of the trial judge is that the judge is in the best position to evaluate it. The judge is physically on the scene, able to observe matters not usually reflected in a cold record. The judge is able to ascertain the demeanor of the witnesses and to note the reaction of the jurors and counsel to inadmissible matters. That is to say, the judge has his finger on the pulse of the trial.

Supporting the denial of the motion by the judge here was that the references to "polygraph" were not...

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