Mitchell v. State

Liss, J., delivered the opinion of the Court. On October 14, 1979, Stanley P. Mitchell, appellant, was charged by separate indictments in the Criminal Court of Baltimore with first degree murder of Leo Shapiro, handgun violations, assault with intent to murder Minnie Shapiro, and robbery with a deadly weapon and lesser included charges. Appellant filed several pretrial motions which were heard before the Honorable James W. Murphy. All motions were denied.

Appellant was then tried before Judge Murphy and a jury. The trial lasted a total of sis days and ended in a mistrial due to a hung jury. Appellant was thereafter retried before Judge Robert I. H. Hammerman and a jury in a trial which lasted for seven days. At the conclusion of the trial appellant was found guilty of first degree/felony ³⁴⁹ murder, use of a handgun, unlawfully carrying or transporting a handgun, assault with intent to murder, and robbery with a deadly weapon.

Appellant was sentenced to life imprisonment on the first degree murder conviction, fifteen years concurrent on the use of a handgun, and three years concurrent on possession of the handgun. The robbery with a deadly weapon and assault with intent to murder charges were held by the trial judge to have merged with the felony/murder. It is from these judgments that this appeal was filed. Appellant raises the following seven issues to be decided by this appeal: I. Did the trial court err in ruling that the fact that the polygraph examinations given to appellant could not be presented to the jury?

II

Were appellant’s statements the involuntary product of inducements by investigators and therefore erroneously admitted?

III

Did the trial court abuse its discretion by permitting the State to call Howard Gersh as a rebuttal witness?

IV

Was improper use permitted of Jeanette Thompson’s testimony at appellant’s first trial, because there was insufficient foundation established for impeachment by prior inconsistent statements? V. Was the trial court’s instruction of the limited role of the jury as trier of fact inadequate?

VI

Was appellant’s representation by trial counsel so inadequate that he was deprived of his Sixth Amendment right to counsel?

VII

Were the prosecutor’s remarks in argument beyond the scope of facts in evidence and prejudicial to appellant? I. It would serve no useful purpose to relate the facts of the brutal murder of the victim in this case except as they ³⁵⁰ become necessary to consider the specific issues raised by appellant. Appellant initially argues that the trial judge at the retrial erred in ruling sua sponte that the jury could not be informed either by the prosecution or defense that polygraph examinations had been given to the defendant on two occasions. He contends that even if the trial court’s ruling were correct as to the admissibility of evidence as to the results of the polygraph exam, it was nevertheless error to deprive the jury of the information that polygraph examinations were conducted.

He suggests that the jury was the final arbiter of the voluntariness of statements made by him to the police and that in performing its function the jury was entitled to have before it all the evidence. Appellant relies principally upon Johnson v. State, 31 Md. App. 303 , 355 A.2d 504 (1976). In that case this Court held that it was reversible error to exclude from the jury’s consideration of the voluntariness of the appellant’s statements the fact that a polygraph was used in obtaining those statements. Judge Lowe, speaking for that Court, said: A trial judge may not select which circumstances relative to voluntariness may go to the jury and which may not.

Once its preliminary determination of voluntariness is made, see Jackson v. Denno, 378 U.S. 368 [ 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964)], all of the relevant evidence bearing on voluntariness must then be submitted to the jury, Day v. State, 196 Md. 384, 399 [ 76 A.2d 729 (1950)]. "The practice in this state, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing, the jury is entitled to have before ³⁵¹ it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.” (Emphasis added). [ 31 Md.App. at 306 ], On the face of the facts here recited, it would appear that the ruling of Judge Hammerman limiting the presentation to the jury of the information that defendant had submitted to two polygraph examinations might well be reversible error.

However, a closer examination of the facts in Johnson and the case at bar requires a different conclusion. Johnson is readily distinguishable on the facts from this case. Additionally, Johnson predates the decision of the Court of Appeals in Kelley v. State, 288 Md. 298 , 418 A.2d 217 (1980), where the Court of Appeals held: [U]ntil such time as the reliability of this particular type of scientific testing [the polygraph] has been appropriately established to the satisfaction of this Court, testimony which directly or indirectly conveys the results of such tests should not be admitted. [ 288 Md. at 302 ], Johnson also predates Akonom v. State, 40 Md. App. 676 , 394 A.2d 1213 (1978), where we held that the results of a polygraph test cannot be admitted, even by stipulation, until it has first been demonstrated that the underlying process of the polygraph test is scientifically reliable. By relying on Johnson for the exclusionary principle we underscored the limited purpose for which admissibility would be recognized.

See Akonom, supra, at 679 . In distinguishing Johnson from the case at bar, it must first be considered that the polygraph tests administered in Johnson were used by the police as a psychological tool in the interrogation process. An inculpatory statement was given to the police by the appellant after he had submitted to two polygraph examinations. The officer who conducted the interrogation was also the operator of the lie detector device.

The interrogating officer would look at the polygraph results ³⁵² after each question and advise appellant that he had failed the test and that the officer didn’t believe him. The officer also questioned appellant as to what had caused the psychological responses indicating that he had made a false statement. After this procedure had been followed, the interrogator left appellant alone in the room with the polygraph for approximately twenty minutes. Then he returned with a second set of questions and repeated the same process.

Soon afterwards, while the machine was not functioning and appellant and the officer were completely relaxed and talking one-on-one, appellant gave the officer a statement which was inculpatory although short of a confession. On the basis of the facts of the Johnson case as herein recited, we held as follows: It is apparent that the use of the deception testing device was intended to produce a psychological effect upon the accused in order to obtain the relevant facts if known by appellant. Appellant’s expressed reason for confessing does not gainsay the test’s effectiveness. It is clear, however, that the use of such a procedure for that purpose would not as a matter of law require the exclusion of a confession so obtained, [citations omitted], involving a confession after several such tests.

Indeed, when these facts became known to the trial judge out of the jury’s presence during a suppression hearing, he decided that such circumstances, even in addition to the other factors offered, did not overcome the preponderant proof by the State that the confession was freely and voluntarily given. [Citation omitted]. The judge having made that preliminary finding, the question of voluntariness should have then been submitted to the jury on the same evidence, although the jury. is to use a higher standard for determining voluntariness — it must find beyond a reasonable doubt that the confession was freely and voluntarily ³⁵³ given. [Citation omitted]. [Emphasis in original], [ 31 Md. App. at 305 ], In the instant case, however, the polygraph examinations were not used in the interrogation of Mitchell for the purpose of obtaining a confession. They were used to verify statements volunteered to the police by the appellant, who was not charged with the Shapiro murder at the time of either polygraph examination. Appellant was not a suspect in the Shapiro murder, nor was he at that time being interrogated as a suspect.

Nothing in the record indicates that either the appellant or his counsel ever contended that appellant was coerced into making the statements because he was subjected to the polygraph tests. On the contrary, the record reveals that counsel for the appellant agreed that there was no allegation in this case that the polygraph in any manner influenced the defendant in making any inculpatory statements. Counsel sought to have the fact that the polygraph tests were administered to the defendant submitted to the jury because they influenced the police in their conduct toward the defendant. That