Kosmas v. State

McAULIFFE, Judge. We reverse the murder conviction of this defendant because the introduction of evidence that he refused to take a lie detector examination prejudiced his case beyond the point that an instruction to disregard the testimony reasonably could be expected to effect a cure. I. Stanley and Maria Kosmas were married in 1963 and had three children. Their marriage was harmonious for a number of years, but problems developed about the time Maria accepted employment outside the home.

The defendant entertained suspicions that his wife was keeping company with one of her employers, and he hired a private detective, Edward Mattson, to conduct a surveillance. In February of 1985, Mattson, a retired Baltimore City police sergeant, found the suspected paramour, Aris Melissaratos, and Maria within a room of the Red Roof Inn in Anne Arundel County. Mattson called the defendant, who came to the scene, and there was a direct but nonviolent confrontation. Thereafter, in April of 1985, the defendant saw Maria and Melissaratos together in Maria’s automobile, and gave chase.

Catching them at a traffic light, the defendant smashed the window nearest Melissaratos, but caused no injury to him. On December 20, 1985, Maria’s body was found in her automobile, in the parking lot of an apartment complex two-tenths of a mile from the Kosmas home. Death was caused by ligature strangulation, and was believed to have ⁵⁹⁰ occurred one to three days earlier. 1 Maria’s actions were accounted for until about 1:00 a.m. on December 17, when the defendant testified he spoke briefly with her at the family home. Throughout these events, and until her death, Maria had continued to reside at the family home, although she left the marital bed at some point.

These facts are known. But, what was happening from February to December of 1985 between the defendant and his wife, and what may have transpired during this period between the defendant and others, is hotly disputed. Michael Kosmas, the oldest of the three children, testified that his father was verbally and physically abusive to his mother, had at one point held a gun to her head, and had threatened to kill her if she left the family. Michael also said his father confided in him that he entered into a contract with Mattson to have Maria killed.

Mattson testified that the defendant offered him $10,000 to have Maria killed while she was visiting her parents in Florida in the summer of 1985. Mattson said he first thought the defendant was joking, and humored him, but later believed the defendant was serious when he persisted in his request after Maria returned from Florida. Mattson admitted that when he was initially interviewed by the police following the discovery of Maria’s body, he did not tell them of the “contract” discussions with the defendant, although he claimed that he had earlier warned Maria and Michael that the defendant had asked Mattson to kill her. The defendant, a retired Baltimore County school teacher who was a co-owner of a restaurant, and who apparently enjoyed an excellent reputation in his business and home communities, testified that he had not threatened or abused his wife.

He said he was upset by her transgressions, but wanted only to preserve his marriage and to keep the family unit intact. He adamantly denied having approached ⁵⁹¹ Mattson about having his wife killed and denied having told Michael that any such conversation took place. Maria had been in the habit of working several nights a week keeping the books at the restaurant co-owned by her husband. On December 16, 1985, she relieved her husband at the restaurant during the early evening, and worked there until it closed at about midnight.

Another restaurant employee drove Maria to her home, arriving there at about 12:30 or 12:45 a.m. Maria’s automobile, which had been driven from the restaurant by the defendant, was parked in front of the home when they arrived. According to the defendant, Maria came into his bedroom at about that time, had a brief and unexceptional conversation with him, and left the room. The two younger Kosmas children were at home, and Michael arrived with friends at about 1:30 or 2:00 a.m.

Maria was not seen again until Mattson discovered her body in her automobile on the morning of December 20. Mattson was the second witness to testify in what was to become a five day trial. 2 In testifying to the events immediately surrounding his discovery of Maria’s body, he said he first learned of her disappearance on December 17, when a friend of Maria’s called; that on the following day, Maria’s sister called him and sought his assistance in looking for Maria; that he called Melissaratos and the defendant and asked some questions, but did not do anything more because no one had retained him; that on December 19, Maria’s mother, who had come to Baltimore from Florida, called and requested Mattson’s services in locating her daughter; and, that on the morning of December 20, he met with Maria’s mother and was retained by her. Mattson said he then went to the defendant’s home, where he found the defendant being interviewed by a Baltimore County detective, whom he knew, and that he sat in on the balance of the interview. Testimony then proceeded as follows: ⁵⁹² MATTSON:____ I sat there and waited until they were done.

Then [Detective] Pfouts went outside with Michael into his car. PROSECUTOR: Did you talk with the defendant at that time? MATTSON: I sure did. PROSECUTOR: Had you been present when he was talking with Detective Pfouts?

MATTSON: I sure was. PROSECUTOR: Could you hear what he was saying to Detective Pfouts? MATTSON: Just the typical police interview, have you seen your wife, et cetera, et cetera. Do you have any idea where she might have been.

PROSECUTOR: And then you talked to the defendant? MATTSON: Then I talked to [Kosmas], I told him, I said, “Would you take a lie detector?” He said no. Defendant’s attorneys promptly approached the bench and requested a mistrial. The prosecutor argued only that “he is not a police officer.

Obviously there are no results, no evidence of a polygraph being given. It is a question of what he said and his response.” The trial judge denied the motion and sua sponte instructed the jury as follows: Ladies and gentlemen of the jury, you will ignore any remark about a lie detector test. It has nothing to do with this case, and you will not consider it any more during the case and during your deliberations. Following his conviction of second degree murder, the defendant appealed, contending among other things that he was seriously prejudiced by the testimony concerning his refusal to take a lie detector test, and that his motion for a mistrial should have been granted.

The Court of Special Appeals affirmed the conviction in an unreported opinion, and we granted certiorari.

II

As the State readily concedes, evidence of the defendant's refusal to submit to a polygraph examination was ⁵⁹³ inadmissible. In a long line of cases anchored by the often quoted opinion of the Minnesota Supreme Court in State v. Kolander, 236 Minn. 209 , 52 N.W.2d 458, 465 (1952), it is universally held that evidence of the defendant’s willingness or unwillingness to submit to a lie detector examination is inadmissible. Aetna Insurance Company v. Barnett Brothers, Inc., 289 F.2d 30, 34 (8th Cir.1961); State v. Sneed, 98 Ariz. 264 , 403 P.2d 816, 820-21 (1965); People v. Carter, 48 Cal.2d 737 , 312 P.2d 665, 674 (1957); Mills v. People, 139 Colo. 397 , 339 P.2d 998, 999-1000 (1959); State v. Chang, 46 Hawaii 22 , 374 P.2d 5, 12 (1962); State v. Green, 254 Iowa 1379 , 121 N.W.2d 89, 91-92 (1963); State v. Emory, 190 Kan. 406 , 375 P.2d 585, 588 (1962); State v. Mottram, 158 Me. 325 , 184 A.2d 225, 229 (1962); State v. Driver, 38 N.J. 255 , 183 A.2d 655, 658-60 (1962); Commonwealth v. Saunders, 386 Pa. 149 , 125 A.2d 442, 445-46 (1956); State v. Britt, 235 S.C. 395 , 111 S.E.2d 669, 685 (1959); Schmunk v. State, 714 P.2d 724, 732 (Wyo.1986); State v. Faught, 546 S.W.2d 515, 516-18 (Mo.App.1977); State v. Hegel, 9 Ohio App.2d 12 , 222 N.E.2d 666, 668 (1964); Bowen v. Eyman, 324 F.Supp. 339, 341 (D.C.Ariz. 1970). And see Annot., Propriety and Prejudicial Effect of Comment or Evidence as to Accused’s Willingness to take Lie Detector Test, 95 A.L.R.2d 819 (1964).

In a number of the earlier cases, prosecutors sought to distinguish the situation in which a defendant refused to submit to a polygraph examination from that involving witnesses other than the defendant who had taken or been offered such a test. The argument advanced was that a defendant’s refusal could properly be treated as evidence of consciousness of guilt, and did not involve any implication of what the result of a test may have been. Rejecting that argument, Justice Traynor, writing for the Supreme Court of California in People v. Carter, supra, 312 P.2d at 674 , said: The suspect may refuse to take the test, not because he fears that it will reveal consciousness of guilt, but because it may record as a lie what is in fact the truth. A ⁵⁹⁴ guilty suspect, on the other hand, may be willing to hazard the test in the hope that it will erroneously record innocence, knowing that even if it does not the results cannot be used as evidence against him.

See also State v. Green, supra, 121 N.W.2d at 91 , and State v. Kolander, supra, 52 N.W.2d at 465 . The questions we must consider then, deal with the damage likely to have been caused by the inadmissible evidence, and the efficacy of the trial judge’s prompt instruction to disregard that evidence. Because we conclude that the damage in the form of prejudice to the defendant transcended the curative effect of the instruction, we reverse and remand for a new trial. Ordinarily, the decision of whether to grant a motion for a mistrial rests in the discretion of the trial judge.

Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974); Lusby v. State, 217 Md. 191, 195 , 141 A.2d 893 (1958). In somewhat similar situations, involving mention of a lie detector test in connection with a witness other than the defendant, we have identified factors that should be considered in determining whether the evidence was so prejudicial that it denied the defendant a fair trial. In Guesfeird v. State, 300 Md. 653, 659 , 480 A.2d 800 (1984), we said: 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. As we also pointed out, these factors are not exclusive and do not themselves comprise the test.

The question is ⁵⁹⁵ whether the prejudice to the defendant was so substantial that he was deprived of a fair trial, and the enumerated factors are simply helpful in the resolution of that question. Borrowing from Guesfeird those factors that also have relevance to the inquiry we must make in this case, we first note that the reference to a lie detector test occurred only once, and that reference was promptly followed by the judge’s instruction to the jury to disregard that evidence. The State argues that it is also in its favor that the statement was not solicited by the prosecutor, but was an inadvertent and unresponsive statement made by Mattson. Although it makes no difference in our ultimate determination of prejudice, we do not necessarily share the State’s view that no blame should be assessed against it for the “blurt-out.” We do not suggest that the prosecutor knew what Mattson’s response would be when he asked if Matt-son had spoken to the defendant on that occasion.

It is conceivable that Mattson had not told the police or prosecutors about this alleged statement of the defendant when he was cooperating with them in the investigation or in preparation for trial. The indications are, however, that although Mattson was initially reluctant to discuss the matter with the police because he was apparently being considered as a suspect, 3 he rather promptly decided to give his full cooper ⁵⁹⁶ ation to the State, 4 while declining to speak to defense counsel. It seems the more likely possibility that if such a conversation with the defendant had occurred, Mattson would have told the police and prosecutors of it. If that fact was known to the prosecutor, he should not have posed the question, “and then you talked to the defendant?” If we assume that the prosecutor did not know of the conversation concerning the lie detector, the State is still not entirely blameless in the matter, for Mattson was the State’s witness, and if a State’s witness intentionally injects inadmissible matter into a trial the State’s case may thereby suffer.

Mattson had been a Baltimore City police officer for fifteen years, attaining the rank of sergeant, and had been a private detective for an additional three and one-half years. It seems highly likely that he was aware that evidence concerning lie detectors was inadmissible, and it requires a generous nature to assume that his reference to the defendant’s refusal to take a lie detector test was inadvertent. We are at least skeptical. 5 More important, however, are the questions of whether credibility of the defendant was a crucial issue in the case, and whether the strength of the State’s case was otherwise such that the prejudice resulting from the improper admission of the evidence may be considered insubstantial. On the first issue, it is clear that the defendant’s credibility was critical to the success of his case.

Much of the strength of the State’s circumstantial evidence