State v. Hawkins

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 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.

I A 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 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. 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. B “[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 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 .

C 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 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 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). “[0]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 ²⁷⁸ 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 solicited or pursued by the prosecutor. All that the officers voiced, without embellishment, was the taboo word “polygraph”. Neither officer stated that Hawkins had taken a polygraph test or had expressed her willingness or unwillingness to take it. The officers did not even indicate that Hawkins had been placed in a room containing a polygraph machine.

Mitchell said she was in “the polygraph suite,” and Bane said she was taken “from the area next to the polygraph room.” That the police interrogated Hawkins in the “polygraph suite” or in the area next to the polygraph room does not necessarily suggest that she was subjected to a polygraph test. In Hawkins’s conditional cross-petition, she presented the question: Did the trial court err in denying a motion for mistrial when two experienced police officers testified in a manner that permitted the jury to infer that Hawkins had taken and failed a polygraph test? The question was presented before the Court of Special Appeals but that court had no need to reach it. Hawkins, 87 Md. at 197, 589 A.2d 524 .

We have no quarrel with the trial judge’s conclusion that Hawkins was not prejudiced. In the light of the lack of prejudice, there was no abuse of discretion in the denial ²⁷⁹ of the motion for a mistrial. Absent an abuse of discretion, there was no error in the judge’s exercise of his discretion. There being no error, the judge’s action was proper.

Hawkins was entitled to a fair, not a perfect, trial. Mack v. State, 300 Md. 583, 598 , 479 A.2d 1344 (1984). We hold that in the particular circumstances of this case, she received the fair trial to which she was entitled. II Our determination that the trial judge properly refused to take the case from the jury paves the way for our review of the judgment of the Court of Special Appeals requested by the State in its petition for the issuance of a writ of certiorari.

The State presented the question: Where a jury is not instructed that an accessory after the fact may not be present for the commission of the offense, and the jury finds the defendant guilty of both the substantive crime and accessoryship, is the appropriate remedy to vacate only the accessoryship conviction? We first make clear that an instruction that “an accessory after the fact may not be present for the commission of the offense” simply does not reflect a correct statement of the law. 2 Clearly, a person may be present during the commission of a felony and nonetheless be an accessory after the fact. If a person, although present at the time of the commission of a felony, took no action sufficient to constitute that person a principal in the first or second degree, that person would be, nevertheless, an accessory after the fact if subsequently that person assisted the felon with the intent to hinder or prevent the felon’s ²⁸⁰ detection, arrest, trial, or punishment. 1 Wharton’s Criminal Law, § 33 (C.E. Torcía, 14th ed. 1978). Wharton observes: Although an accessory after the fact is ordinarily not present when the felony was committed, his absence is not required.

Thus, a person who was present when a felony was committed, but in no way aided or abetted its commission — and hence did not qualify as a principal in the second degree — may become an accessory after the fact by rendering aid to the felon thereafter in order to facilitate his escape. Id. A The indictment on which Hawkins was tried presented in the first count that she “willfully and of deliberately premeditated malice aforethought did kill and murder” Dell Rose Noble. When a person embraces a misdemeanor, that person is a principal as to that crime, no matter what the nature of the involvement.

In the field of felony, however, the common law divides guilty parties into principals and accessories. Principals are classified as in the first degree (perpetrators), or in the second degree (abettors — in times past, as accessories at the fact). Accessories are classified as before the fact (inciters) or after the fact (criminal protectors). State v. Ward, 284 Md. 189, 196 , 396 A.2d 1041 (1978), appeal after remand, 290 Md. 76 , 427 A.2d 1008 (1981).

A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. An accessory before the fact is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually ²⁸¹ or constructively at the moment of perpetration. An accessory after the fact is one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment.

Id. 284 Md. at 197 , 396 A.2d 1041 . See cases and authorities cited therein. See also Sheppard v. State, 312 Md. 118, 121-123 , 538 A.2d 773 (1988); Watson v. State, 208 Md. 210, 218-219 , 117 A.2d 549 (1955). Four verdicts were possible on the murder charge: guilty of murder in the first degree, either as premeditated or as perpetrated in the commission of a felony; or guilty of murder in the second degree; or not guilty of murder but guilty of manslaughter; or not guilty.

See Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 387 (manslaughter); § 407 (first degree murder); § 410 (felony murder); § 411 (second degree murder); § 616 (indictment for murder or manslaughter); Bruce v. State, 317 Md. 642, 645 , 566 A.2d 103 (1989); Hook v. State, 315 Md. 25, 27-28 , 553 A.2d 233 (1989); State v. Faulkner, 301 Md. 482, 485 , 483 A.2d 759 (1984); State v. Ward, 284 Md. at 195 , 396 A.2d 1041 . The judge in his instructions traversed the entire area of the law pertaining to the crime of murder. He spoke to first degree murder as premeditated or committed in the perpetration of a felony. He defined a principal in the first degree and a principal in the second degree.

He explained murder in the second degree. The parties do not dispute the propriety of this instruction. B The eighth count of the indictment presented that Hawkins did willfully, unlawfully, and knowingly aid, harbor and assist Wayne Pickney and others, after the commission of a felony, to wit: murder to hinder his apprehension, detection, trial or punishment and did so with full knowledge of said crimes____ ²⁸² If proved, this charge would make Hawkins an accessory after the fact. When the English colonists crossed the sea to America they brought with them the common law of England, and that law was generally recognized in the rule of the colonies by Great Britain.

It came to pass, however, that the colonists considered themselves to be thirteen separate “States,” and on 4 July 1776, the thirteen states, through fifty-six representatives of the “UNITED STATES OF AMERICA,” sorely aggrieved by the “long train of abuses and usurpations” suffered under British Rule, did “in the Name, and by the authority of the good People of these Colonies, solemnly publish and declare” That these United Colonies are, and of right ought to be FREE AND INDEPENDENT STATES; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor. Two days later, the People of Maryland declared their independence from Great Britain. The People of the United Colonies had to fight for the independence they were constrained to declare.

They won, but the pledge made by their representatives on their behalf was honored. Many people lost their lives; some lost their fortunes; most were true to their sacred honor. It was by the fact of the victory, however, that the rights which had been declared by Maryland and a constitution which it had adopted shortly after it had proclaimed its independence, remained viable. On 14 August 1776 a convention met at Annapolis to establish a form of government for Maryland, formerly a ²⁸³ proprietary province.

The delegates labored for three months and brought forth a Constitution and a Declaration of Rights. They were not submitted to the People, but went into effect on 11 November 1776 by agreement of the delegates. Paragraph III of the Maryland Declaration of Rights adopted in 1776 included the proclamation “That the inhabitants of Maryland are entitled to the common law of England____” The entitlement appeared in the Declaration of Rights in each succeeding Constitution — -1851 in Article 3; 1864 in Article 4; and 1867, in effect today, in Article 5. The statement regarding the common law, this Court early held, had reference to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it as are inconsistent with the spirit of that instrument, and the nature of our new political institutions.

State v. Buchanan, 5 H. & J. 317, 358 (1821). See McGraw v. State, 234 Md. 273, 275-276 , 199 A.2d 229 , cert, denied, 379 U.S. 862 , 85 S.Ct. 124 , 13 L.Ed.2d 64 (1964). With the common law of England came the doctrine of accessoryship applicable to felonies. Maryland is one of the few, if not the only state which has retained this doctrine with respect to accessory after the fact in virtually the same form as it existed at the time of William Blackstone in the 18th century, and it represents the law of Maryland at the present time.

Osborne v. State, 304 Md. 323 , 326 n. 2, 499 A.2d 170 (1985) and cases cited therein. Blackstone, speaking “of Principals and Accessories” in his discussion of “Public Wrongs,” said: An accessory after a fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists a felon. 4 W. Blackstone, Commentaries on the Law of England, ³⁷ (1825). See Sheppard v. State, 312 Md. at 122 n. 2, 538 A.2d 773 ; Osborne v. State, 304 Md. at 326-327 , 499 A.2d ²⁸⁴ 170, Watson v. State, 208 Md. at 217-219 , 117 A.2d 549 ; Cooper v. State, 44 Md.App. 59, 65-65 , 407 A.2d 756 (1979); McClain v. State, 10 Md.App. 106, 114-115 , 268 A.2d 572 (1970); Robinson, Austin, and Lothes v. State, 5 Md.App. 723, 728 , 249 A.2d 504 (1969); Perkins and Boyce, Criminal Law, 748 (3d ed. 1982); Clark and Marshall, A Treatise on the Law of Crimes, § 8.06 (Wingersky rev. 1958); 2 LaFave and Scott, Substantive Criminal Law, § 6.9 (1986); L. Hochheimer, The Law of Crimes and Criminal Procedure, § 26 (2d ed. 1904); 1 Bishop on Criminal Law, § 692 (9th ed. 1923); 1 Wharton’s Criminal Law, § 33 (C.E. Torcía, 14th ed. 1978); R. Gilbert and C. Moylan, Maryland Criminal Law: Practice and Procedure, § 21.4-2 (1983); J. Miller, Criminal Law, § 77 (1934). All of the above give three elements or requisites for the crime of accessory after the fact: 1) a felony must have been committed by another prior to the act of accessoryship; 2) the accessory must know of the commission of the felony; 3) the accessory must do some act personally in his effort to assist the felon to avoid the consequences of his crime.

The legal scholars interpret the common law as requiring a fourth element or requisite: The accessory must not himself be guilty of the substantive felony as a principal. Perkins and Boyce at 748-749; LaFave and Scott at § 6.9; Gilbert and Moylan at 21.4-2; 1 H.R. Brill, Cyclopedia of Criminal Law, § 243 (1922); and 1 E.M. McClain, A Treatise on the Criminal Law, § 209 (1897) flat out say so. We recognized the element in Sheppard, 312 Md. at 122, n. 2 , 538 A.2d 773 , and in Osborne, 304 Md. at 327 n. 3, 499 A.2d 170 . We quoted Bishop §§ 692-693 in Watson, 208 Md. at 218-219 , 117 A.2d 549 .

Although Bishop does not expressly so state, it is apparent from its discussion that the accessory after the fact may not be a principal in the substantive felony. Bishop noted in § 696 at 500, “We should not ²⁸⁵ confound the guilt of him who commits a substantive crime, with his [guilt] who becomes an accessory after the fact.” The Court of Special Appeals expressly set out the element in Cooper, 44 Md.App. at 65 , 407 A.2d 756 , and it is implicit in its McClain, 10 Md.App. 106