Guesfeird v. State

COUCH, Judge. In the instant appeal, appellant presents three issues. First, whether an unsolicited and inadvertent reference by the complaining witness to taking a lie detector test is ground for reversible error where the trial court denied appellant’s motion for a mistrial and gave a curative instruction. Secondly, whether appellant has a legitimate right to make a tactical decision regarding curative instructions being given in his favor, and thus, whether the trial court erred in so instructing the jury without consulting counsel.

Thirdly, appellant questions whether the trial court erred in denying appellant’s motion for a new trial based on newly discovered evidence, where two and a half months after the end of trial the complaining witness recanted her testimony. Although the second issue presents an intriguing question, and we note that at least one court has recognized such a right, People v. Yatooma, 85 Mich. App. 236 , 271 N.W.2d 184, 187 (1978), we need not decide the second or third issue because we conclude that the first issue presents reversible error. I. Appellant, Robert Guesfeird, was found guilty, by a jury in the Circuit Court for Caroline County, of four counts of ⁶⁵⁶ committing child abuse and fourth degree sexual offenses against Tina Seiler, a young teenage girl who lived in appellant’s home under his care and custody.

Following his conviction, appellant appealed to the Court of Special Appeals, which affirmed his conviction in an unreported, per curiam opinion. No. 1616, September Term, 1982 (filed Sept. 9, 1983). Certiorari was granted to consider questions of public importance. Tina Seiler, the complaining witness, was the principal witness in the state’s case and was the only witness to give evidence supporting the allegations.

Tina moved into appellant’s household along with her older brother when their natural mother moved in with appellant. At some point, Tina’s mother left the household and appellant’s new girlfriend moved into the house, apparently before the alleged events occurred. Tina and her brother remained with appellant, and appellant later was awarded custody. Tina testified to a continuing practice of appellant forcing sexual intercourse on her, and she described two specific occasions at trial.

Although it is confusing from the record, determining all the persons who resided in the household at the time of the alleged events is not pertinent or necessary here. After approximately a year and a half of recurring incidents of sexual intercourse, Tina ran away. When Tina reached the point of this event in her testimony, the colloquy that is pertinent to the issue in this appeal occurred. When Tina was asked when it was that she eventually went to the authorities at school to discuss the problem, the following dialogue ensued: “Q. Okay, and then did you eventually go to the school authorities and talk to a Mr. Arnold and some other people?

A. Yes. Q. Did you tell them what was happening? A. Um-hum, and that is when I took the lie detector and Bobby a ... ⁶⁵⁷ MR. KEHOE [Defense Counsel]: Objection, Your Hon- or.

Approach the bench.” At the bench conference which followed, defense counsel moved for a mistrial on the ground that the jury would infer that the witness had passed the lie detector test. The trial judge inquired about the results of the test, and both counsel informed him that Tina had passed. The trial judge then denied defense counsel’s motion and noted counsel’s objection. Immediately after the bench conference, without consulting counsel, the trial judge gave a cautionary instruction to the jury to disregard any evidence of a lie detector test.

Defense counsel promptly noted an objection to the instruction because of the emphasis it had created. Tina was the only witness for the state to testify to the crimes alleged. Undoubtedly, if she was believed, her testimony was sufficient to support a conviction. As the trial developed, however, it became clear that the crucial question was whether Tina was to be believed.

Tina’s testimony was contradicted by all the other witnesses who testified. Appellant testified and expressly contradicted Tina, denying any sexual misconduct. Appellant further testified that he was suffering from an automobile accident and was on crutches at the time of Tina’s allegations and he therefore had difficulty moving about. Further, Tina’s brother testified that he did not believe Tina’s allegations.

He testified that Tina had made approximately ten other similar accusations against several other men. The other accusations included Jim Alton, another man Tina’s mother had lived with for several years. Tina’s mother also testified to the accusations against Alton and added that Tina had retracted her accusation when Alton and her mother confronted her. Tina’s mother testified that Tina explained that her accusation of Alton stemmed from her confusion from having fantasy dreams.

Alton testified and corroborated the testimony of Tina’s mother and brother. Tina’s brother suggested that the recent accusations were motivated by Tina’s desire to obtain a ⁶⁵⁸ change in custody because she was unhappy about performing her assigned household chores. If the jury believed the testimony of appellant and his witnesses they would have had to acquit the appellant. The crucial issue in the case was the credibility of the witnesses.

Indeed, both counsel recognized this and argued the point to the jury. Because the testimony was in direct contradiction, the case turned on whom the jury chose to believe. Obviously, the jury chose to believe Tina and found appellant guilty. Because credibility was the determinative issue in the trial, we must consider whether the trial judge committed reversible error when he denied appellant’s motion for a mistrial after Tina’s inadvertent and unsolicited reference to taking a lie detector test.

II

The standard for our review of the trial judge’s decision is clear. The granting of a motion for mistrial is within the discretion of the trial judge. Lusby v. State, 217 Md. 191, 195 , 141 A.2d 893, 895 (1958). “The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant.” Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707, 723 (1974); Lusby, 217 Md. at 195 , 141 A.2d at 895 ; see also Poole v. State, 295 Md. 167, 183-84 , 453 A.2d 1218, 1227 (1983). Hence, the ultimate question of this appeal is whether the reference to taking a lie detector test by the prosecution’s principal witness so clearly prejudiced the appellant that a motion for mistrial should have been granted.

No dispute exists to the well established rule that evidence of polygraph tests is not admissible. Lusby, 217 Md. at 194-95 , 141 A.2d at 895 . The results of a lie detector test, as well as the fact of taking such a test, are not admissible. Id. at 195 n. 1, 141 A.2d at 895 n. 1; Kelley v. State, 288 Md. 298, 302 , 418 A.2d 217, 219 (1980); see also Annot., 15 A.L.R.4th 824 , 829-31 (1982) (cases cited ⁶⁵⁹ therein).

In the instant appeal, no issue exists concerning the admissibility of Tina’s statement. The issue is the prejudicial character of the statement. “A reference to a lie detector test in a criminal trial is not ground for reversal if the result of the test cannot be inferred from the circumstances or if the reference is not prejudicial to the defendant.” State v. Edwards, 412 A.2d 983, 985 (Me.1980). See also, e.g., State v. Marquez, 113 Ariz. 540 , 558 P.2d 692, 696 (1976) (in banc); Johnson v. State, 166 So.2d 798, 805 (Fla.Dist.Ct.App.1964); Commonwealth v. Garland, 475 Pa. 389 , 380 A.2d 777, 781 (1977); State v. Sutherland, 94 Wash.2d 527 , 617 P.2d 1010, 1011-12 (1980) (En Banc). Indeed, there have been cases in Maryland in which references to lie detector tests were held not to be so prejudicial as to warrant reversal.

See, Poole, 295 Md. at 182-84 , 453 A.2d at 1227 ; Lusby, 217 Md. at 195 , 141 A.2d at 895 . In determining whether evidence of a lie detector test was so prejudicial that it denied the defendant a fair trial, courts have looked at many factors. The factors that have been considered include: whether the reference to a lie detector was repeated or whether it was a single, isolated statement; whether the reference was solicited by counsel, or was an inadvertent and unresponsive statement; whether the witness making the reference is the principal witness upon whom the entire prosecution depends; whether credibility is a crucial issue; whether a great deal of other evidence exists; and, whether an inference as to the result of the test can be drawn. See, e.g., People v. Yatooma, 85 Mich.App. 236 , 271 N.W.2d 184, 186-87 (1978) (factors listed); and cases discussed infra; see generally Annot., 15 A.L.R.4th 824 (1982).

No single factor is determinative in any case. The factors themselves are not the test, but rather, they help to evaluate whether the defendant was prejudiced. In State v. Edwards, 412 A.2d 983 (Me.1980), the court reversed a conviction for gross sexual misconduct. Id. at 987 .

On direct examination, the complaining witness made an inadvertent reference to the fact that she had taken a lie ⁶⁶⁰ detector test. Id. at 984 . The court stated that it is not “necessary to require a mistrial to be automatic upon any mention of a polygraph examination by a witness.” Id. at 985 . The appropriate analysis was explained by the court. “When the prosecutor’s questioning inadvertently elicits a witness’s reference to a polygraph test, there is cause for mistrial if, but only if, the reference to the test raises an inference about the result that substantially prejudices the defendant’s case.

Kaminski v. State, [ 63 So.2d 339 (Fla.1952)]; State v. Davis, [ 351 So.2d 771 (La.1977)]; Commonwealth v. Camm, 443 Pa. 253 , 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046 , 92 S.Ct. 1320 , 31 L.Ed.2d 589 (1972). In deciding whether to grant or deny a defendant’s motion for mistrial in such a situation, the trial court must weigh various factors bearing on the substantiality of any resulting prejudice to the defendant. Among other factors, it must determine (1) whether the inference as to the result of the test may be crucial in assessing the witness’s credibility, and (2) whether ‘the witness’s credibility play[s] a vital role in the case.’ People v. Whitfield, 58 Mich.App. 585, 589-90 , 228 N.W.2d 475, 477-78 (1975).” Id. The court added that “[t]he fact that the reference is isolated or inadvertent does not alone insure that the reference is not prejudicial.” Id.

The court reversed because the credibility of the complaining witness was a crucial issue. She was the principal prosecution witness, whose uncorroborated testimony provided the only basis on which the jury could find the defendant guilty. Id. “The reference was sufficient to inform the jury that she had taken the test, and the natural and reasonable implication of the reference was that she had passed it.” Id. at 987. In People v. Yatooma, 85 Mich.App. 236 , 271 N.W.2d 184 (1978), the reference to a lie detector test in a prosecution for burning real ■ property was unsolicited, isolated and inadvertent.

Id. at 187. The court, nevertheless, reversed the conviction because the crucial issue of the trial was the credibility of the witnesses versus that of the defendant. ⁶⁶¹ Id. The fact that credibility was a crucial issue outweighed the fact that the polygraph reference was isolated and inadvertent. “The jury, required to choose between two directly conflicting stories ..., cannot be presumed to have been unaffected by evidence that one of the witnesses had successfully passed a lie-detector test prior to his testimony.” Id. The court concluded that a sufficient possibility existed that the jury may have resolved the credibility issue by reference to the polygraph testimony.

Id. In several additional cases where the credibility of the witnesses was a vital issue, courts have found reversible error for the denial of a motion for mistrial where the defendant was prejudiced by a reference to a lie detector test. See, e.g., Roleson v. State, 272 Ark. 346 , 614 S.W.2d 656, 660 (1981); State v. Davis, 351 So.2d 771, 773-74 (La.1977) (reference unsolicited and unresponsive); Hembree v. State, 546 S.W.2d 235, 240 (Tenn.Crim.App.1976)