Akonom v. State

⁶⁷⁷ Morton, J., delivered the opinion of the Court. Appellants, Michael Akonom and Joshua Gregg, were tried jointly 1 before a jury in the Criminal Court of Baltimore (Allen, J.) on two separate counts of murder and related handgun offenses. The jury found each of them guilty on two counts of first degree murder and also returned guilty verdicts on all outstanding handgun charges. 2 Two consecutive life sentences were imposed for the murder convictions. The charges stemmed from the shooting deaths of Malcolm Crawley and Bland Gatewood on June 25,1976, at Crawley’s home.

There is no question that the victims and appellants knew each other. There was testimony indicating that Akonom had previously been “set up” by Gatewood in an abortive narcotics arrest and that Gregg had once been charged with assaulting Crawley. It is clear from the record that appellants were in the neighborhood at the approximate time of the shootings and there was evidence that appellant Akonom was in possession of a .45 caliber handgun on the day of the murders. Ballistics evidence showed that the victims were killed by .45 caliber bullets.

The actual murder weapon, however, was never discovered. The crucial fact for the purposes of this appeal is that on July 9, 1976, appellant Gregg, after several hours of questioning, voluntarily submitted to a polygraph examination at Baltimore City police headquarters. He also gave police a signed statement in which he denied involvement in the murders. On neither occasion was he represented by counsel.

Prior to the polygraph examination, Gregg signed a “stipulation” agreeing that in the event of a trial, either the State or the defense could introduce the test results, provided the results were “conclusive.” The record also indicates that Gregg was advised of his constitutional rights prior to his statement and prior to the polygraph examination. ⁶⁷⁸ The examination was administered by Larry Howell, an employee of the Baltimore City Police Department who received training in polygraphy during his service with the United States Army. Howell, whom the court qualified as an expert witness, testified at trial that the examination consisted of a combination of “relevant” questions concerning the crime, irrelevant questions and control questions. Deceptive answers to control questions are anticipated. They are intended to aid the examiner in determining the reactibility of the subject.

The four “relevant” questions were: 1. Were you there in the house when Malcolm and Bland were shot? 2. Do you know for sure who shot Malcolm and Bland? 3. Were you involved in Malcolm and Bland’s death in any way? 4.

Do you know what happened to the gun after the shooting? Howell testified that Gregg answered “no” to all four of the relevant questions. He further testified that the polygraph results indicated that Gregg’s responses to the first three relevant questions were “untruthful,” but that Gregg was “telling the truth” when he responded negatively to the fourth question. It is in this factual posture that appellants contend that the admission of testimony concerning the results of Gregg’s polygraph examination constituted reversible error as to both appellants’ convictions notwithstanding that Gregg volunteered to subject himself to the examination and agreed that the results could be used by the State or himself regardless of the outcome.

We announced in Rawlings v. State, 7 Md. App. 611 (1969), a case of first impression, that we would follow the general rule that polygraph evidence is inadmissible, but we did not reach the question of the effect of a stipulation between the State and the defense upon the admissibility of such evidence. ⁶⁷⁹ We have since cited Rawlings with approval in Smith v. State, 31 Md. App. 106, 120 (1976); Smith v. State, 20 Md. App. 577, 594 (1974); Wilson v. State, 20 Md. App. 318, 334 (1974). In adopting the rale of inadmissibility as enunciated by the Supreme Court of New Hampshire in State v. LaForest, 207 A. 2d 429 (1965), this Court stated in Rawlings, supra, 614: “We have examined all available authorities and have concluded that at this stage in the science or the art of lie detecting, the rationale of the general rule expressed above represents the sounder approach to the issue.” The New Hampshire court noted that while the polygraph is a valid investigative tool, “[nevertheless the results of these tests have been rejected by the courts as evidence of guilt or innocence of the accused by the overwhelming weight of judicial authority on the ground that these tests have not yet attained sufficient scientific acceptance as an accurate and reliable means of ascertaining truth or deception . . . .” LaForest, supra, 430 . More recently, we observed in Johnson v. State, 31 Md. App. 303, 307 (1976), that “[t]he reason for excluding the results of a polygraph examination is the questionable reliability of such evidence.” The State, however, argues strenuously that the stipulation in the instant case disposes of the admissibility problem. It is clear from the record that the trial judge admitted the evidence on this basis.

Judge Allen stated: “The issue... here is not the admissibility of lie detector tests vel non, but the issue of a lie detector test after a stipulation____” In support of its contention, the State relies heavily upon State v. McDavitt, 297 A. 2d 849 (N.J. 1972) and State v. Valdez, 371 P. 2d 894 (Ariz. 1962). In those cases, the highest courts of New Jersey and Arizona, while acknowledging the general rule against admissibility of polygraph evidence, held such evidence admissible upon stipulation by the parties provided there is a factual showing that the stipulation is clear, complete, and voluntary and that the test is administered by a competent examiner using established polygraph techniques. ⁶⁸⁰ We find these cases unpersuasive and would venture to suggest that they are guilty of putting the cart before the well-known horse. As we see it, the crucial issue is whether, as a matter of law, this type of evidence is sufficiently reliable or trustworthy. It cannot logically be argued that a stipulation enhances in any significant way the inherent reliability of evidence produced by a so-called scientific process or art.

See, e.g., Pulakis v. State, 476 P. 2d 474, 479 (Alaska, 1970). Even proponents of the use of polygraph evidence admit that a stipulation does not increase its reliability. One strong supporter suggests that “when a court admits polygraph evidence upon stipulation, it is probably because of a tacit belief in the accuracy of the technique.” Tarlow, Admissibility of Polygraph Evidence in 1975: An Aid in Determining Credibility in a Perjury-Plagued System, 26 Hastings L.J. 917 , 956 (1975). Thus, while we are generally reluctant to invalidate agreements entered into by the parties, we view this as one of the unusual occasions when we are obligated to do so.

See generally Annot., Relief From Stipulations, 161 A.L.R. 1161 ; Peddicord v. Franklin, 270 Md. 164, 175 (1973). As the Supreme Court observed in Young v. United States, 315 U. S. 257, 259 (1942), “the proper administration of the criminal law cannot be left merely to the stipulation of the parties.” The Young dictum seems particularly apt in this instance where the stipulated polygraph evidence comprised the heart of the State’s case against Gregg. In fact, Detective Steve Danko of the Baltimore City Police Department testified that Gregg would never have been charged if he had “passed” the polygraph test. Accordingly, we decline to sanction the use of evidence produced by an allegedly scientific device unless it is first demonstrated that the underlying process is scientifically reliable. 3 ⁶⁸¹ The proper evaluation of polygraph evidence, irrespective of any stipulation, is a difficult task.

In adhering to the exclusionary policy laid down in Rawlings, supra, and its successors, we see nothing in the recent decision of the Court of Appeals in Reed v. State, 283 Md. 374 (1978), which obliges us to reconsider our prior position. The Reed case set forth, for the first time in Maryland, a uniform standard for judging the admissibility of scientific evidence. That standard is the test articulated in the landmark case of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), where the court found that evidence produced by a crude forerunner of the modern polygraph was insufficiently reliable and therefore inadmissible: “ ‘Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony dededuced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

(Emphasis supplied.)’ ” Reed, supra, 381 . Elaborating on the Frye test, the Court of Appeals stated: “* * * [BJefore a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field. Thus, according to the Frye standard, if a new scientific technique’s validity is in controversy in the relevant scientific community, or if it is generally regarded as an experimental technique, then expert testimony based upon its validity cannot be admitted into evidence. The identity of the relevant scientific community is, of course, a matter which depends upon the particular technique in question.

In general, ⁶⁸² members of the relevant scientific community will include those whose scientific background and training are sufficient to allow them to comprehend and understand the process and form a judgment about it. ’’ (Emphasis supplied.) Reed, supra, 381-82 . Hence, it is clear under Reed that the relevant “field” in which the polygraph belongs is not limited to those who practice the science (or art) of polygraphy, but extends into the larger scientific community as well. This conclusion is in accord with Frye , where it was determined that a primitive lie detector test lacked sufficient “standing and scientific recognition among physiological and psychological authorities.” Frye, supra, 1014 . Upon rejecting the contention that the trier of fact might determine the validity and weight of scientific evidence on a case by case basis and decrying the inconsistencies that would inevitably result from such a practice, the Court of Appeals restated the Frye rule in the following terms: “As long as the scientific community remains significantly divided, results of controversial techniques will not be admitted, and all defendants will face the same burdens.” (Emphasis added.) Reed, supra, 388 .

Unfortunately, the record before us does not provide an adequate basis for determining whether the polygraph has gained “general acceptance in the scientific community” under the Frye-Reed test. The only “expert” testimony in the present case came from the polygraph examiner himself, an individual apparently qualified in polygraphy but without any broader scientific training. Moreover, as we noted earlier, the trial judge mistakenly assumed that the stipulation made it unnecessary